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AL  ABAM  A :  ARBITO  AT  i>N 

THOMAS  WILLING  BALCH.;,, 

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THE 


ALABAMA  ARBITRATION 


THE 


ALABAMA  ARBITRATION 


BY 


THOMAS  WILLING   BALCH 

A.  B.  (Harvard) 
Member  of  the  Philadelphia  Bar 


/06/8 


Philadelphia 

ALLEN,  LANE  &  SCOTT 

1900 


Copyright,  1900,  by 
THOMAS    WILLING    BALCH. 


Press  of 

ALLEN,  LANE   &   SCOTT, 

Philadelphia,  Pa. 


7X 


INTRODUCTORY   NOTE. 


This  is  an  attempt  to  tell  the  story  of  the  A/a- 
bama  arbitration,  as  far  as  possible,  in  the  words 
of  the  participants  in  that  drama.  It  is  hoped  the 
work  will  be  of  use  to  historical  students.  My 
brother,  Edwin  Swift  Balch,  Esq.,  has  aided  me  in 
one  way  or  another  in  its  preparation. 

T.  W.  B. 

Philadelphia,   May  5th,   1900. 


CHAPTER  I. 

OOON  after  the  outbreak  of  hostilities  in  1861  in 
the  United  States  between  the  Northern  and  the 
Southern  States  over  the  Slavery  question,  the  Con- 
federate States,  in  order  to  injure  the  power  of  the 
Union  States  by  striking  and  destroying  the  mercan- 
tile marine  of  the  latter,  sought  with  great  energy, 
tenacity  and  skill  to  create  a  navy  sufficiently  strong 
to  force  the  Union  maritime  commerce  to  seek  the 
shelter  of  a  neutral  flag.  And  in  this  course  their 
hasty  recognition  as  belligerents  by  England  helped 
them  very  much.^  Fort  Sumter  fell  April  13th,  1861; 
President  Lincoln  issued  his  proclamation  declaring  a 

^The  National  and  Private  ''Alabama  Claims'^  and  their 
''final  and  amicable  settlement,'''  by  Charles  C.  Beaman,  Jr. 
Printed  by  W.  H.  Moore,  Washington,  D.  C,  1871,  pages,  7-48. 
Correspondence  concerning  Claims  Against  Great  Britain. 
Volume  VI.  Washington:  Government  Printing  Office,  1871, 
page  4  et  seq.  Letter  of  "  C."  on  The  American  Blockade 
and  Belligerent  Rights  in  the  London  Daily  News,  Thursday, 
October  19th,  1865  :  reprinted  in  Correspondence  concerning 
Claims  Against  Great  Britain.  Volume  IV.  Washington : 
Government  Printing  Office,  1869,  page  257.  Charles  Francis 
Adams,  by  his  son,  Charles  Francis  Adams.  Boston  and  New 
York,  1900,  pages  168-172. 

(I) 


2  THE    ALABAMA    ARBITRATION. 

blockade  of  the  Southern  ports  on  April  19th  ;  and 
in  spite  of  Earl  Russell's  promise  to  Mr.  Dallas,  the 
American  Minister,  to  wait  to  hear  Charles  Francis 
Adams,  the  newly  chosen  representative  to  England 
of  the  new  Administration,  the  British  Government 
published,  on  May  13th,  the  very  day  of  Mr.  Adams's 
arrival  in  London,  the  Queen's  neutrality  proclama- 
tion recognizing  the  Confederates  as  belligerents. 
That  act  was  the  first  step  that  made  it  possible  for 
the  latter  to  carry  on  from  the  shores  of  England  a 
naval  war  against  the  United  States. 

The  first  ship  of  war  of  any  importance  that  flew  the 
Confederate  flag  on  the  high  seas,  was  the  Sumter?  Un- 
der the  command  of  Raphael  Semmes,  who  equipped 
her  and,  at  the  end  of  June,  1861,  took  her  successfully 
out  of  New  Orleans  past  the  Union  ships,  she  proved 
for  six  months  a  scourge  to  Northern  commerce. 
She  did  not  destroy  many  vessels,  but  she  inspired 
sufficient  fear  to  Northern  ship  owners  to  cause  many 
of  them  to  place  their  boats  under  the  neutral  flag  of 
England.  Her  career  as  a  Confederate  cruiser  was 
cut  short  at  Gibraltar  in  January,  1862,  when  her  com- 

"^ Memoirs  of  Service  Afloat,  during  the  War  between  the  States, 
by  Admiral  Raphael  Semmes,  C.  S.  N.,  Baltimore,  1869,  pages 
93~345  passim.  Papers  relating  to  the  Treaty  of  Washingtoji. 
Volume  I,  Gc7ieva  Arbitration.  Washington :  Government 
Printing  Office,    1872,  page  129. 


THE    ALABAMA    ARBITRATION.  3 

mander,  finding  it  impossible  to  obtain  coal,  was  forced 
to  have  her  sold.  She  was  equipped  in  a  Southern 
port,  and  was  accorded  only  such  recognition  by  for- 
eign nations  as  were  in  accord  with  the  rules  of  in- 
ternational law.  But  in  the  meantime,  the  Southern 
Government  was  preparing  to  build  in  England,  and 
equip  and  man  with  English  guns  and  English  sea- 
men, a  fleet  of  sufficient  strength  to  largely  ruin  the 
United  States  mercantile  marine. 

Captain  James  D.  BullocH,  of  the  Confederate 
States  Navy,  was  the  naval  representative,  and  Messrs. 
Eraser,  Trenholm  and  Company  were  the  financial 
agents  of  the  Confederate  Government  in  England. 
Captain  Bullock  first  had  built  at  Liverpool  in  1861-62 
the  Oreto,  subsequently  known  as  the  Florida?  To 
avoid  suspicion  it  was  given  out  that  she  was  intended 
for  the  Italian  Government.  But  upon  inquiry  to 
the  Italian  consul  at  Liverpool,  he  disclaimed  all 
knowledge  of  her;  and  the  United  States  Minister 
to  England,  Charles  Francis  Adams,  informed  Earl 
Russell  on  February  i8th,  1862,  that  she  was  in- 
tended  for   the    Confederate    Government.     On   the 

'^Papers  relating  to  the  Treaty  of  Washington.  Volume  I. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  page  133  et  seq.  The  National  and  Private  ^^ Alabama 
Claims''  and  their  "-final  and  amicable  settlement,'"  by  Charles 
C.  Beaman,  Jr.  Printed  by  W.  H.  Moore,  Washington,  D.  C, 
1 87 1,  pages  49-68. 


4  THE    ALABAMA    ARBITRATION. 

2 2d  of  February  the  commissioners  of  customs  re- 
ported to  the  British  Government  that  the  Oreto 
was  built  to  carry  guns,  but  that  she  then  had  on 
board  neither  guns  nor  gun-carriages,  and  that  she 
was  intended  for  the  use  of  a  Palermo  firm.  Again, 
on  March  26th,  Mr.  Adams  called  Earl  Russell's  atten- 
tion to  the  probable  destination  of  the  vessel :  but  four 
days  before  she  had  sailed  with  a  general  cargo,  osten- 
sibly for  an  Italian  port.  She  next  was  heard  of  in  the 
West  Indies  at  Nassauj'  New  Providence.  There  she 
aroused  the  suspicion  of  the  American  Consul  and  of 
some  British  naval  officers,  who  advised  her  detention. 
Other  vessels  arrived  from  England  with  equipments 
and  guns.  Finally  she  was  seized ;  but  the  Vice- 
Admiralty  Court  released  her  on  the  ground  of  lack 
of  evidence.  She  then  sailed  for  Nassau,  received  her 
armament  at  sea,  and  was  christened  the  Florida. 
From  that  time  until  October,  1864,  when  she  was 
captured  by  the  United  States  ship  of  war  Wachu- 
sett,  she  destroyed  many  ships  of  the  United  States 
merchant  marine. 

But  it  was  the  Alabama'^  that  of  all  the  Confederate 
cruisers  did  the  most  to  cause  the  transfer  of  United 

*  Memoirs  of  Service  Afloat,  during  the  War  between  the  States, 
by  Admiral  Raphael  Semmes,  C.  S.  N,  Baltimore,  1869,  pages 
370-773,  passim.  Papers  relating  to  the  Treaty  of  Washington. 
Volume  I.       Geneva   Arbitration.      Washington :    Government 


THE    ALABAMA    ARBITRATION.  5 

States  merchant  vessels  to  the  protection  of  the 
English  flag.  She  was  better  built,  equipped  and 
commanded  than  any  of  the  others  to  prey  upon  the 
Union  commerce.  Captain  Bulloct^  contracted  with 
the  Messrs.  Laird  of  Birkenhead  for  her  construction. 
She  was  known  as  the  "290."'^  No  secret  was  made 
of  the  purpose  for  which  she  was  built.  She  was 
launched  on  May  15th,  1862.  The  United  States  Con- 
sul at  Liverpool,  Mr.  Dudley,  finding  ample  evidence 
that  she  was  intended  as  a  vessel  of  war  for  the  Con- 
federate Government,  sent  it  to  Mr.  Adams.  On  June 
23d,  Mr.  Adams  wrote  to  Earl  Russell  inclosing  Mr. 
Dudley's  letter,  and  requested  that  action  might  be 
taken  either  to  stop  the  projected  expedition,  or  else 
to  establish  the  fact  that  its  purpose  was  not  hostile  to 

Printing  Office,  1872,  page  146  et  seq.  The  National  and 
Private  ' '  Alabama  Claims ' '  and  their  '  ^  final  and  amicable 
settlement''  by  Charles  C.  Beaman,  Jr.  Printed  by  W.  H. 
Moore,  Washington,  D.  C,  1871,  pages  69-100.  Charles 
Francis  Adams,  by  his  son,  Charles  Francis  Adams.  Boston  and 
New  York,  1900,  page  306  et  seq. 

^  The  Alaba7na  was  known  as  the  "  290  "  because  she  was  the 
two  hundred  and  ninetieth  vessel  that  the  Lairds  built.  It  is  a 
curious  coincidence  that  when,  a  few  years  since,  Mr.  Herbert, 
then  Secretary  of  the  Navy  of  the  United  States,  was  to  name 
one  of  the  great  battleships  building  at  Philadelphia  by  the 
Cramps,  he  called  her  after  his  native  State,  the  Alabama  ;  and 
she,  too,  though  quite  unknown  to  the  Secretary,  was  the  two 
hundred  and  ninetieth  ship  that  the  Cramps  built,  and  was  re- 
corded in  their  books  as  "  No.  290." 


6  THE    ALABAMA    ARBITRATION. 

the  United  States.  On  July  ist,  the  commissioners  of 
customs,  to  whom  were  referred  Mr.  Adams's  letter  to 
Earl  Russell  and  its  inclosure,  reported  to  the  Gov- 
ernment that  the»  vessel  was  undoubtedly  intended  for 
a  warship,  but  that  she  had  neither  guns  nor  gun-car- 
riages on  board,  and  that  their  solicitor  did  not  think 
that  there  was  any  cause  to  detain  her.  The  com- 
missioners suggested  also  that  the  American  Consul  at 
Liverpool  should  submit  to  them  any  further  evidence 
he  might  obtain.  Mr.  Dudley  soon  laid  before  the 
commissioners  a  mass  of  evidence  showing  the  true 
state  of  affairs.  The  same  evidence  was  submitted  to 
Mr.  Collier,  an  eminent  barrister,  who,  on  July  23d, 
gave  his  opinion  that  the  "290"  should  be  detained. 
The  next  day  Mr.  Adams  sent  Mr.  Collier's  opinion 
and  additional  evidence  to  Earl  Russell.  While  the 
British  Government  was  deciding  what  action  it  would 
take  in  the  matter,  the  "  290,"  on  July  29th,  went  to 
sea  without  a  clearance,  ostensibly  on  her  trial  trip  ; 
she  carried  a  party  of  ladies  and  gentlemen,  but  her 
guests  were  sent  back  from  the  bar  on  a  tug,  and  she 
herself  proceeded  to  a  bay  on  the  island  of  Anglesea. 
The  order  for  her  detention  arrived  only  after  she  had 
sailed.^     She   then  proceeded  to  the  Azores.     There, 

*  When  the  Alabama  escaped,  the  Confederate  cause  was  at  high- 
water  mark,  and  there  were  good  reasons  for  believing  that  the 
Union  would  be  broken.     But  Meade's  victory  at  Gettysburg  and 


THE    ALABAMA    ARBITRATION.  7 

two  English  boats,  carrying  her  armament  and  addi- 
tional seamen,  met  her.  After  receiving  from  them 
her  equipment,  the  "  290"  was  turned  over  to  Captain 
Semmes  and  a  crew  composed  almost  entirely  of  Eng- 
lishmen, who,  on  the  broad  Atlantic,  christened  her  the 

Grant's  capture  of  Vicksburg  at  the  beginning  of  July,  1863, 
and  the  gradual,  but  steady  ebbing,  thereafter,  of  the  tide  of 
Confederate  power,  undoubtedly  influenced  the  action  of  the  Brit- 
ish Government.  At  the  beginning  of  the  following  September 
(1863),  in  spite  of  the  ample  evidence  that  Mr.  Adams  furnished 
to  Earl  Russell  of  the  ultimate  destination  and  use  of  the  two 
iron-clad  rams  that  the  Lairds  were  building  at  Birkenhead  for 
the  Confederates,  Mr.  Adams  received  from  Earl  Russell,  on  Sep- 
tember 4th,  a  note  dated  the  ist,  in  which  the  Earl  said  that  under 
the  circumstances,  "  Her  Majesty's  Government  are  advised  that 
they  cannot  interfere  in  any  way  with  these  vessels."  Mr.  Adams, 
seeing  that  one  of  the  iron-clads  was  about  to  escape  to  sea  much 
in  the  same  way  that  the  Alabama  had  done,  sent  the  following 
vigorous  communication  to  the  Earl : — 

"  Legation  OF  the  United  States, 

"London,  September  5,  1863. 

"My  Lord: — At  this  moment,  when  one  of  the  iron-clad 
vessels  is  on  the  point  of  departure  from  this  kingdom,  on  its 
hostile  errand  against  the  United  States,  I  am  honored  with  the 
reply  of  your  lordship  to  my  notes  of  the  nth,  i6th,  and  25th  of 
July,  and  of  the  14th  of  August.  I  trust  I  need  not  express  how 
profound  is  my  regret  at  the  conclusion  to  which  her  Majesty's 
Government  have  arrived.  I  can  regard  it  no  otherwise  than  as 
practically  opening  to  the  insurgents  free  liberty  in  this  kingdom 
to  execute  a  policy  described  in  one  of  their  late  publications  in 
the  following  language  : 

"  '  In  the  present  state  of  the  harbor  defences  of  New  York, 
Boston,   Portland,  and  smaller  northern  cities,   such  a  vessel  as 


8  THE    ALABAMA    ARBITRATION. 

Alabama.  Then  for  nearly  two  years,  under  the 
skilful  command  of  her  brave  and  able  captain,  the 
Alabama,  until  her  destruction  by  the  Kearsarge  off 
Cherbourg,  June    19th,    1864,    became    the  terror   of 

the  Warrior  would  have  little  difficulty  in  entering  any  of  these 
ports  and  inflicting  a  vital  blow  upon  the  enemy.  The  destruction 
of  Boston  alone  would  be  worth  a  hundred  victories  in  the  field. 
It  would  bring  such  a  terror  to  the  "blue-noses"  as  to  cause 
them  to  wish  eagerly  for  peace,  despite  their  overweening  love  of 
gain,  which  has  been  so  freely  administered  to  since  the  opening  of 
this  war.  Vessels  of  the  Warrior  class  would  promptly  raise  the 
blockade  of  our  ports,  and  would  even,  in  this  respect,  confer 
advantages  which  would  soon  repay  the  cost  of  their  construction.' 
' '  It  would  be  superfi2ious  in  me  to  point  out  to  your  lordship 
that  this  is  war.  No  matter  what  may  be  the  theory  adopted  of 
neutrality  in  a  struggle,  when  this  process  is  carried  on  in  the 
manner  indicated,  from  a  territory  and  with  the  aid  of  the  subjects 
of  a  third  party,  that  third  party  to  all  intents  and  purposes  ceases 
to  be  neutral.  Neither  is  it  necessary  to  show  that  any  govern- 
ment which  suffers  it  to  be  done  fails  in  enforcing  the  essential  con- 
ditions of  international  amity  towards  the  country  against  whom 
the  hostility  is  directed.  In  my  belief  it  is  impossible  that  any 
nation,  retaining  a  proper  degree  of  self-respect,  could  tamely 
submit  to  a  continuance  of  relations  so  utterly  deficient  in  reci- 
procity. I  have  no  idea  that  Great  Britain  would  do  so  for  a 
moment. 

"  I  pray  your  lordship  to  accept  the  assurances  of  the  highest 

consideration  with  which  I  have  the  honor  to  be,   my  lord,  your 

most  obedient  servant, 

"CHARLES  FRANCIS  ADAMS. 

"  Right  Honorable  Earl  Russell,  &c.,  &c.,  &c." 

Mr.  Adams's  protest  bore  good  fruit  ;  for  a  few  days  later  he 
received  from  Earl  Russell  the  following  note  : — 


THE    ALABAMA    ARBITRATION.  9 

American  seamen.  She  hoisted  the  British  flag  to 
lure  prizes  to  their  destruction,  was  welcomed  at 
Cape  Town,  Singapore,  and  other  British  harbors,' 
and   practically   drove    the    American    flag  from   the 

"Foreign  Office,  September  8,  1863. 

"  Lord  Russell  presents  his  compliments  to  Mr.  Adams,  and  has 
the  honor  to  inform  him  that  instructions  have  been  issued  which  will 
prevent  the  departure  of  the  two  iron-clad  vessels  from  Liverpool." 

The  English  Government  did  not  allow  the  vessels  to  sail  to 
enter  the  Confederate  service,  and  subsequently  bought  them  itself 

Papers  relatiyig  to  Foreign  Affairs,  accompanying  the  Annual 
Message  of  the  Preside^it  to  the  First  session  of  the  Thirty-eighth 
Congress.  Part  L  Washington  :  Government  Printing  Office, 
1864,  pages  357-360,  361-364,  367,  368.  Charles  Francis 
Adams,  by  his  son,  Charles  Francis  Adams.  Boston  and  New 
York,  1900,  pages  334-336,  341-344. 

'  The  following  letter  from  Dr.  Edmund  W.  Holmes,  of  the 
University  of  Pennsylvania — who  was  during  a  part  of  the  Civil 
War  at  Cape  Town,  South  Africa,  where  his  father.  Captain  Gid- 
eon S.  Holmes,  was  formerly  the  United  States  Consul — shows 
how  hostile  British  feeling  was  towards  the  Union  cause  : — 

"Philadelphia,  April  9th,    1900. 

"  My  DEAR  Sir  : — I  send  you  herewith  the  remarks  about  the 
visit  of  the  Alabama  to  Cape  Town,  as  requested  by  you. 

' '  Upon  the  signal  hill  is  the  station  from  which  approaching 
vessels  are  signalled  and  reported  down  into  the  city  by  sema- 
phore. From  here,  on  that  memorable  day  in  '63,  was  announced 
the  approach  of  the  luckless  American  bark  The  Sea  Bride ; 
quickly  followed  by  that  of  a  steamer,  under  the  British  flag, 
supposed  to  be  the  bi-monthly  mail  steamer  of  those  days.  Soon 
the  British  flag  changed  to  the  Confederate  colors  and  she  proved 
to  be  the  cruiser  Alabama.      I  arrived  on  horse-back,   at    Sea 


o 


lO  THE    ALABAMA    ARBITRATION. 

high  seas  to  the  shelter  of  the  Union  Jack.  What 
the  United  States  lost,  England  gained.  The  feeling 
in  the  United  States  towards  England  grew  bitter.* 
The  Alabama  was  openly  called  a  British  pirate,^  and 

Point  in  time  to  see  her  fire  a  shot  and  bring  to  The  Sea  Bride, 
and  put  a  prize  crew  aboard.  Every  American  swore  the  bark  was 
within  the  three  mile  limit ;  every  Englishman  swore  she  was 
without  these  limits  ;  she  was  declared  to  be  a  lawful  prize  by  the 
British  authorities, 

"  I  went  aboard  of  the  Alaba^na,  saw  the  mark  of  the  un- 
exploded  shell  of  the  Hatteras,  which  one  of  the  junior  officers 
with  great  gusto  declared  if  exploded  would  have  ended  the 
steamer's  career. 

' '  I  saw  Captain  Semmes  in  his  cabin,  with  flowers  piled  higher 
than  his  head  surrounded  by  the  elite  of  English  aristocratic  so- 
ciety ;  and  when  anyone  talks  now  of  British  friendship  I  cannot 
help  thinking  of  this  vessel,  built  in  England,  built  with  English 
capital,  armed  with  English  guns,  manned  with  English  men  to 
prey  upon  the  commerce  of  a  friendly  nation. 

' '  The  day  after  the  arrival  of  the  Alabama  in  Table  Bay  the 
merchants  were  gathered  upon  '  change,  and  in  a  bantering  spirit, 
taunted  my  father,  Gideon  S.  Holmes,  publicly  upon  the  sucess- 
ful  career  of  the  Confederate  cruiser  in  evading  the  United  States 
men  of  war,  when  he  replied  :  '  Well !  you  dance  now,  but  you 
will  pay  the  piper,'  and  the  Geneva  award  was  the  fulfillment  of 
that  prophesy.  ' '  Yours  truly, 

"E.  W.  HOLMES. 

"Mr.   T.  W.   Balch." 

^Proceedings  of  the  Chamber  of  Commerce  of  the  State  of  New 
York  071  the  continued  piracies  of  vessels  fitted  out  in  Great  Brit- 
ain upon  American  commerce.  Saturday,  February  21st,  1863. 
New  York,  1863. 

^English  Neutrality.  Is  the  Alaba?na  a  British  Pirate  f  (By 
G.  P.  Lowrey.)     New  York,  1863. 


THE    ALABAMA    ARBITRATION.  I  I 

her  successful    destruction    of  American    commerce 
roused  public  opinion  to  fever  heat. 

American  sentiment  was  well  expressed  in  Lowell's 
Jonathan  to  yohn : — 

"We  own  the  ocean,  tu,  John: 
You  mus'  n'   take  it  hard, 
Ef  we  can't  think  with  you,  John. 
It's  jest  your  own  back-yard. 
Ole  Uncle  S.  sez  he,    '  I  guess, 
Ef  theV s  his  claim,'  sez  he, 
'The  fencin' -stuff '11  cost  enough 
To  bust  up  friend  J.   B., 
Ez  wal  ez  you  an'   me  !  ' 

' '  Why  talk  so  dreffle  big,  John, 
Of  honor  when  it  meant 
You  did  n't  care  a  fig,  John, 
But  jest  for  ten  per  cent.  ? 

Ole  Uncle  S.  sez  he,    '  I  guess 
He's  like  the  rest,'   sez  he: 
'When  all  is  done,  it's  number  one 
Thet's  nearest  to  J.   B., 
Ez  wal  ez  t'   you  an'   me  ! '  " 

Of  the  numerous  other  commerce  destroyers  flying 
the  Confederate  flag  for  whose  existence  the  United 
States  held  Great  Britain  answerable,  two,  the  Georgia 
and  the  Shenandoah,  gained  a  good  deal  of  notoriety. 
The  former  sailed  before  notice  of  her  destination  was 
addressed  to  the  British  Government,  but  ample  warn- 
ing was  given  of  the  intended  shipping  of  her  arma- 
ment to   her   off  the    French   coast   for   the    British 


12  THE    ALABAMA    ARBITRATION. 

Government  to  have  stopped  the  shipment.  After 
destroying-  many  American  ships,  the  Georgia  returned 
to  Liverpool. ^°  Thomas  Baring,  in  a  speech  in  Parlia- 
ment on  May  13th,  1864,  thus  described  her  career:" 
"At  the  time  of  her  departure  the  Georgia  was  reg- 
istered as  the  property  of  a  Liverpool  merchant,  a 
partner  of  the  firm  which  shipped  the  crew.  She  re- 
mained the  property  of  this  person  until  the  23d  of 
June,  when  the  register  was  cancelled,  he  notifying  the 
Collector  of  her  sale  to  foreign  owners.  During  this 
period,  namely,  from  the  ist  of  April  to  the  23d  of 
June,  the  Georgia  being  still  registered  in  the  name 
of  a  Liverpool  merchant,  and  thus  his  property,  was 
carrying  on  war  against  the  United  States,  with  whom 
we  were  in  alliance.  It  was  while  still  a  British  vessel 
that  she  captured  and  burned  the  Dictator,  and  cap- 
tured and  released,  under  bond,  the  Griswold,  the  same 
vessel  which  had  brought  corn  to  the  Lancashire  suf- 
ferers.    The  crew  of  the  Georgia  were  paid  through 

^^ Papers  relating  to  the  Treaty  of  Washington.  Volume  I. 
Geyieva  Arbitratioii.  Washington  :  Government  Printing  Office, 
1872,  page  156.  The  National  and  Private  "  Alabama  Claims^' 
and  their  '^ final  and  amicable  settlement,^ ^  by  Charles  C. 
Beaman,  Jr.     Printed   by  W.  H.    Moore,    Washington,   D.  C, 

1871,  pages  101-106. 

^^ Papers  relating  to  the  Treaty  of  Washington.  Volume  I. 
Geneva  Arbitration.    Washington  :   Government  Printing  Office, 

1872,  page  160. 


THE    ALABAMA    ARBITRATION.  I  3 

the  same  Liverpool  firm.  A  copy  of  an  advance  note 
used  is  to  be  found  in  the  Diplomatic  Correspondence. 
The  same  firm  continued  to  act  in  this  capacity  through- 
out the  cruise  of  the  Georgia.  After  cruising  in  the 
Atlantic,  and  burning  and  bonding  a  number  of  vessels, 
the  Georgia  made  for  Cherbourg,  where  she  arrived 
on  the  28th  of  October.  There  was,  at  the  time,  much 
discontent  among  the  crew ;  many  deserted,  leave  of 
absence  was  given  to  others,  and  their  wages  were 
paid  all  along  by  the  same  Liverpool  firm.  In  order 
to  get  the  Georgia  to  sea  again,  the  Liverpool  firm 
enlisted  in  Liverpool  some  twenty  seamen,  and  sent 
them  to  Brest.  The  Georgia  left  Cherbourg  on  a 
second  cruise,  but  having  no  success  she  returned  to 
that  port,  and  thence  to  Liverpool,  where  her  crew  have 
been  paid  off  without  any  concealment,  and  the  vessel 
is  now  laid  up.  Here,  then,  is  the  case  of  a  vessel, 
clandestinely  built,  fraudulently  leaving  the  port  of  her 
construction,  taking  Englishmen  on  board  as  her  crew, 
and  waging  war  against  the  United  States,  an  ally  of 
ours,  without  once  having  entered  a  port  of  the  power 
the  commission  of  which  she  bears,  but  being,  for  some 
time,  the  property  of  an  English  subject.  She  has  now 
returned  to  Liverpool — and  has  returned,  I  am  told, 
with  a  British  crew  on  board,  who,  having  enlisted  in 
war  against  an  ally  of  ours,  have  committed  a  misde- 
meanor in  the  sight  of  the  law." 


14  THE    ALABAMA    ARBITRATION. 

The  Shenandoah^'-  \N3iS  originally  the  Sea  King.  On 
September  20th,  1864,  she  was  sold  to  the  father-in- 
law  of  the  managing  partner  of  Fraser,  Trenholm  and 
Company,  and  the  transfer  was  registered  the  same 
day.  In  October  she  cleared  from  London  for  Bom- 
bay. About  the  same  time  a  smaller  steamer,  carrying 
her  armament,  sailed  from  Liverpool.  They  met  at 
Madeira  where  the  Sea  King,  from  that  time  known 
as  the  Shenandoah,  took  on  board  her  equipment. 
She  then  cruised  in  the  Atlantic  and  the  Pacific  for 
ninety  days,  destroying  many  ships,  when  she  arrived 
at  Melbourne.  The  news  of  her  escape  from  Eng- 
land had  preceded  her  to  Australia ;  but,  neverthe- 
less, in  spite  of  the  protests  of  the  American  Consul, 
she  was  allowed  to  make  repairs,  recruit  her  crew, 
and  replenish  her  supply  of  coal.  Then  the  authori- 
ties permitted  the  Shenandoah  to  sail  to  still  further 
harass  and  destroy  American  commerce.^^  After  de- 
stroying a  number  of  whaling  vessels — some,  owing 

^"^Papers  relating  to  the  Treaty  of  Washington.  Volume  I. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  page  165.  The  National  and  Private  "  Alabama  Claims'' 
and  their  ^^  final  and  amicable  settlement^'"  by  Charles  C.  Beaman, 
Jr.  Printed  by  W.  H.  Moore,  Washington,  D.  C,  1871,  pages 
107-149. 

^^Papers  relating  to  the  Treaty  of  Washington.  Volume  I. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  page  165  et  seq.     Letter  of  Mr.  Adams  to  Earl  Russell, 


THE    ALABAMA    ARBITRATION.  I  5 

to  her  captain's  ignorance  of  the  cessation  of  hos- 
tilities, after  the  close  of  the  war — she  finally  made 
her  way  back  to  Liverpool,  where  her  commander 
gave  her  up  to  the  British  Government,  by  whom 
she  was  transferred  to  the  United  States  Consul, 

The  havoc  and  terror  wrought  by  these  vessels 
ruined  the  mercantile  commerce  of  the  United  States.^* 
After  Charles  Francis  Adams,  who  represented  the 
United  States  at  the  Court  of  St.  James  with  ability 
and  dignity,  had  done  everything  possible  to  prevent 
the  escape  of  the  Oreto  and  the  Alabama,  he  sum- 
marized with  great  vigor  in  a  letter  to  Earl  Russell 
written  on  October  23d,  1863,  the  case  for  the  United 
States  at  that  time  agfainst  Great  Britain,  That  letter 
was  as  follows  : — 

"Legation  of  the  United  States. 

(Received  October  23.) 

"London,  October  23,  1863. 

"  My  Lord  : — It  may  be  within  your  recollection  that 
in  the  note  of  the  1 7th  of  September  which  I  had  the 

April  7th,  1865  ;  Papers  relating  to  Foreign  Affairs,  accom- 
panying the  Annual  Message  of  the  President  to  the  First 
Session  Thirty-ninth  Congress.  Part  I.  Washington  :  Gov- 
ernment Printing  Office,  1866,  page  578. 

"  Speech  of  Richard  Cobden  delivered  in  the  House  of  Com- 
mons, May  13th,  1864. 


1 6  THE    ALABAMA    ARBITRATION. 

honor  to  address  to  you  in  reply  to  yours  of  the  14th 
of  the  same  month,  respecting  the  claim  for  the  destruc- 
tion of  the  ship  Nora,  and  other  claims  of  the  same 
kind,  which  I  had  been  instructed  to  make,  I  expressed 
myself  desirous  to  defer  to  your  wishes  that  they  should 
not  be  further  pressed  on  the  attention  of  Her  Majesty's 
Government,  so  far  as  to  be  willing  to  refer  the  ques- 
tion of  the  withdrawal  of  my  existing  instructions  back 
for  the  consideration  of  my  Government.  I  have  now 
the  honor  to  inform  your  lordship  of  the  result  of  that 
application. 

"After  a  careful  resurvey  of  all  the  facts  connected 
with  the  outfit  and  later  proceedings  of  the  gun-boat 
'  No.  290,'  now  known  as  the  war-steamer  Alabama,  I 
regret  to  report  to  you  that  the  Government  of  the 
United  States  finds  itself  wholly  unable  to  abandon  the 
position  heretofore  taken  on  that  subject. 

*'  The  reasons  for  this  conclusion  have  been  so  often 
explained  in  the  correspondence  which  I  have  hereto- 
fore had  the  honor  to  hold  with  your  lordship  touching 
this  case  that  I  shall  endeavor  to  confine  myself  to  a 
brief  recapitulation. 

**  The  United  States  understand  that  they  are  at 
peace  with  Great  Britain.  That  peace  is  furthermore 
secured  by  treaties  which  oblige  both  parties  to  refrain 
and  to  restrain  their  subjects  from  making  war  against 
each  other. 


THE    ALABAMA    ARBITRATION.  I  7 

"They  greatly  regret  to  be  compelled  to  admit  the 
fact  that  the  vessel  known  first  as  the  gun-boat,  *  No. 
290,'  and  now  as  the  Alabama,  is  roving  over  the  seas 
capturing,  burning,  sinking,  and  destroying  American 
vessels  without  lawful  authority  from  any  source  recog- 
nized by  international  law,  and  in  open  defiance  of  all 
judicial  tribunals  established  by  the  common  consent 
of  civilized  nations  as  a  restraint  upon  such  a  piratical 
mode  of  warfare. 

"That  this  vessel  was  built  with  the  intent  to  make 
war  against  the  United  States  by  British  subjects,  in  a 
British  port,  and  that  she  was  prepared  there  to  be 
armed  and  equipped  with  a  specified  armament  adapted 
to  her  construction  for  the  very  purpose  she  is  now 
pursuing  does  not  appear  to  them  to  admit  of  dispute. 

"  That  this  armament  and  equipment,  adapted  to 
this  ship  and  no  other,  were  simultaneously  prepared 
by  British  subjects  in  a  British  port,  with  the  intent  to 
complete  her  preparation  for  her  career,  seems  equally 
clear.  Furthermore,  it  is  sufficiently  established  that 
when  this  vessel  was  ready,  and  her  armament  and 
equipment  were  equally  ready,  she  was  clandestinely 
sent,  by  the  connivance  of  her  British  holders,  and 
the  armament  and  equipment  were  at  the  same  time 
clandestinely  sent,  through  the  connivance  of  the  same 
or  other  British  subjects  who  prepared  them  to  a  com- 
mon point  outside  of  British  waters,  and  there  the 


15  THE    ALABAMA    ARBITRATION. 

armament  and  equipment  of  this  vessel  as  a  war-ship 
were  completed. 

"  This  war-ship,  thus  deriving  all  its  powers  to  do 
mischief  from  British  sources,  manned  by  a  crew  of 
British  subjects  enlisted  in  and  proceeding  from  a  Brit- 
ish port,  then  went  forth  on  her  work  to  burn  and  de- 
stroy the  property  of  the  people  of  the  United  States, 
in  fraud  of  the  laws  of  Great  Britain  and  in  violation  of 
the  peace  and  sovereignty  of  the  United  States.  From 
the  earliest  to  the  latest  day  of  her  career  she  does  not 
appear  to  have  gained  any  other  national  character  on 
the  ocean  than  that  which  belonged  to  her  in  her 
origin. 

"From  a  review  of  all  these  circumstances,  essential 
to  a  right  judgment  of  the  question,  the  Government  of 
the  United  States  understand  that  the  purpose  of  the 
building,  armament,  equipment  and  expedition  of  this 
vessel,  carried  with  it  one  single  criminal  intent,  run- 
ning equally  through  all  the  portions  of  this  prepara- 
tion, fully  complete  and  executed  when  the  gun-boat 
'No.  290'  assumed  the  name  of  the  Alabama;  and 
that  this  intent  brought  the  whole  transaction  in  all 
its  several  parts  here  recited,  within  the  lawful  juris- 
diction of  Great  Britain,  where  the  main  portions  of 
the  crime  were  planned  and  executed. 

"  Furthermore,  the  United  States  are  compelled  to 
assume  that  they  gave  due   and  sufficient   previous 


THE    ALABAMA    ARBITRATION.  1 9 

notice  to  Her  Majesty's  Government  that  this  criminal 
enterprise  was  begun  and  in  regular  process  of  execu- 
tion, through  the  agencies  herein  described,  in  one  of 
Her  Majesty's  ports.  They  cannot  resist  the  conclu- 
sion that  the  Government  was  then  bound  by  treaty 
obligations  and  by  the  law  of  nations  to  prevent  the 
execution  of  it.  Had  it  acted  with  the  promptness  and 
energy  required  by  the  emergency,  they  cannot  but 
feel  assured  the  whole  scheme  must  have  been  frus- 
trated. The  United  States  are  ready  to  admit  that  it 
did  act  so  far  as  to  acknowledge  the  propriety  of  de- 
taining this  vessel  for  the  reasons  assigned,  but  they 
are  constrained  to  object  that  valuable  time  was  lost  in 
delays,  and  that  the  effort,  when  attempted,  was  too 
soon  abandoned.  They  cannot  consider  the  justice  of 
their  claim  for  reparation  liable  to  be  affected  by  any 
circumstances  connected  with  those  mere  forms  of  pro- 
ceeding on  the  part  of  Great  Britain  which  are  exclu- 
sively within  her  own  control. 

"  Upon  these  principles  of  law  and  these  assump- 
tions of  fact  resting  upon  the  evidence  in  the  case,  I 
am  instructed  to  say  that  my  Government  must  con- 
tinue to  insist  that  Great  Britain  has  made  itself 
responsible  for  the  damages  which  the  peaceful  law- 
abiding  citizens  of  the  United  States  sustain  by  the 
depredations  of  the  vessel  called  the  Alabama. 

"  In  repeating  this  conclusion,  however,  it  is  not  to 


20  THE   ALABAMA    ARBITRATION. 

be  understood  that  the  United  States  incline  to  act 
dogmatically,  or  in  a  spirit  of  litigation.  They  desire 
to  maintain  amity  as  well  as  peace.  They  fully  com- 
prehend how  unavoidably  reciprocal  grievances  must 
spring  up  from  the  divergence  in  the  policy  of  the  two 
countries  in  regard  to  the  present  insurrection.  They 
cannot  but  appreciate  the  difficulties  under  which  Her 
Majesty's  Government  is  laboring  from  the  pressure 
of  interests  and  combinations  of  British  subjects  ap- 
parently bent  upon  compromising  by  their  unlawful 
acts  the  neutrality  which  Her  Majesty  has  proclaimed 
and  desires  to  preserve,  even  to  the  extent  of  involv- 
ing the  two  nations  in  the  horrors  of  a  maritime  war. 
For  these  reasons  I  am  instructed  to  say,  that  they 
frankly  confess  themselves  unwilling  to  regard  the 
present  hour  as  the  most  favorable  to  a  calm  and 
candid  examination  by  either  party  of  the  facts  or  the 
principles  involved  in  cases  like  the  one  now  in  ques- 
tion. Though  indulging  a  firm  conviction  of  the  cor- 
rectness of  their  position  in  regard  to  this  and  other 
claims,  they  declare  themselves  disposed,  at  all  times, 
hereafter  as  well  as  now,  to  consider  in  the  fullest 
manner  all  the  evidence  and  the  arguments  which  Her 
Majesty's  government  may  incline  to  proffer  in  refu- 
tation of  it ;  and  in  case  of  an  impossibility  to  arrive 
at  any  common  conclusion,  I  am  directed  to  say  there 
is  no  fair  and  equitable  form  of  conventional  arbitra- 


THE    ALABAMA    ARBITRATION.  21 

ment  or  reference  to  which  they  will  not  be  willing 
to  submit.^^ 

"  Entertaining  these  views,  I  crave  permission  to 
apprise  your  Lordship  that  I  have  received  directions 
to  continue  to  present  to  your  notice  claims  of  the 
character  heretofore  advanced,  whenever  they  arise, 
and  to  furnish  the  evidence  on  which  they  rest,  as  is 
customary  in  such  cases,  in  order  to  guard  against  pos- 
sible ultimate  failure  of  justice  from  the  absence  of  it. 

"  In  accordance  with  these  instructions  I  now  do 
myself  the  honor  to  transmit  the  papers  accompanying 
the  cases  heretofore  withheld,  pending  the  reception 
of  later  information. 

"  I  pray,  &c., 

"CHARLES  FRANCIS  ADAMS." ^'^ 

Earl  Russell  wrote  to  Mr.  Adams  three  days  later: — 

"Foreign  Office,  October  26,  1863. 
"  Sir  : — I  have  had  the  honor  to  receive  your  letter 
of  the  23d  instant. 

"See  Seward's  letter  of  September  27th,  1865,  to  Adams, 
post,  page  66. 

"  The  case  of  Great  Britain  as  laid  before  the  Tribunal  of  Ar- 
bitration, convened  at  Geneva  under  the  provisions  of  the  treaty 
between  the  United  States  of  America  and  Her  Majesty  the 
Queen  of  Great  Britain,  concluded  at  Washington,  May  8th,  187 1. 
Printed  by  order  of  Congress,  U.  S.  A.  Washington  :  Govern- 
ment Printing  Office,  1872.    Volume  III.,  page  490. 


22  THE    ALABAMA    ARBITRATION. 

"  In  that  letter  you  inform  me  that  you  are  in- 
structed to  say  that  the  Government  of  the  United 
States  must  continue  to  insist  that  Great  Britain  has 
made  itself  responsible  for  the  damages  which  the 
citizens  of  the  United  States  sustain  by  the  depre- 
dations of  the  vessel   called   the  Alabama, 

"  But  toward  the  conclusion  of  your  letter  you  state 
that  the  Government  of  the  United  States  are  not  dis- 
posed to  act  dogmatically  or  in  a  spirit  of  litigation  ; 
that  they  desire  to  maintain  amity  as  well  as  peace  ; 
that  they  fully  comprehend  how  unavoidably  reciprocal 
grievances  must  spring  up  from  the  divergence  of  the 
policy  of  the  two  countries  in  regard  to  the  present 
insurrection.  You  add,  further  on,  that  the  United 
States  frankly  confess  themselves  unwilling  to  regard 
the  present  hour  as  the  most  favorable  to  a  calm  and 
candid  examination  by  either  party  of  the  facts  or  the 
principles  involved  in  cases  like  the  one  now  in  question. 

"  With  this  declaration  Her  Majesty's  Government 
may  well  be  content  to  await  the  time  when  a  calm 
and  candid  examination  of  the  facts  and  principles  in- 
volved in  the  case  of  the  Alabama  may,  in  the  opinion 
of  the  Government  of  the  United  States,  usefully  be 
undertaken. 

"In  the  meantime,  I  must  request  you  to  believe 
that  the  principle  contended  for  by  Her  Majesty's 
Government  is  not  that  of  commissioning,  equipping, 


THE    ALABAMA    ARBITRATION.  23 

and  manning  vessels  in  our  ports  to  cruise  against 
either  of  the  belligerent  parties — a  principle  which  was 
so  justly  and  unequivocally  condemned  by  the  Presi- 
dent of  the  United  States  in  1793,  as  recorded  by  Mr. 
Jefferson  in  his  letter  to  Mr.  Hammond  of  the  13th  of 
May  of  that  year. 

"But  the  British  Government  must  decline  to  be 
responsible  for  the  acts  of  parties  who  fit  out  a  seem- 
ing merchant  ship,  send  her  to  a  port  or  to  waters 
far  from  the  jurisdiction  of  British  Courts,  and  there 
commission,  equip,  and  man  her  as  a  vessel  of  war. 

"  Her  Majesty's  Government  fear  that  if  an  admitted 
principle  were  thus  made  elastic  to  suit  a  particular 
case,  the  trade  of  shipbuilding,  in  which  our  people 
excel,  and  which  is  to  great  numbers  of  them  a  source 
of  honest  livelihood,  would  be  seriously  embarrassed 
and  impeded.  I  may  add  that  it  appears  strange  that 
notwithstanding  the  large  and  powerful  naval  force 
possessed  by  the  Government  of  the  United  States,  no 
efficient  measures  have  been  taken  by  that  Govern- 
ment to  capture  the  Alabama. 

"  On  our  part  I  must  declare  that  to  perform  the 
duties  of  neutrality  fairly  and  impartially,  and  at  the 
same  time  to  maintain  the  spirit  of  British  law  and 
protect  the  lawful  industry  of  the  Queen's  subjects, 
is  the  object  of  Her  Majesty's  Government,  and  they 
trust  that  the  Government  of  the  United  States  will 


24  THE    ALABAMA    ARBITRATION. 

recognize  their  earnest  desire  to  preserve,  in  the 
difficult  circumstances  of  the  present  time,  the  rela- 
tions of  amity  between  the  two  nations. 

"I  am,  &c.,  " RUSSELL." ^^ 

The  unfriendly  course  pursued  by  the  English 
Government  toward  the  Union  States  in  permitting 
the  building  of  Confederate  cruisers  in  English  ports, 
was  forcibly  brought  to  the  attention  of  the  people  of 
the  North  by  the  totally  different  policy  followed  by 
the  Russian  Government.  The  Government  of  the 
Tzar  not  only  did  not  recognize  the  belligerency  of  the 
Confederate  States,^^  but  in  addition,  when  there  were 
various  credited  rumors  that  the  English  and  the 
French  Governments  contemplated  an  intervention  in 
behalf  of  the  Confederacy,^^  it  sent  a  fleet  under  Admi- 

"  The  case  of  Great  Britain  as  laid  before  the  Tribunal  of  Ar- 
bitration, convened  at  Geneva  under  the  provisions  of  the  treaty 
between  the  United  States  of  America  and  Her  Majesty  the 
Queen  of  Great  Britain,  concluded  at  Washingtoyi,  May  8th,  i8yi. 
Printed  by  order  of  Congress,  U.  S.  A.  Washington  :  Govern- 
ment Printing  Ofifice,  1872.    Volume  III.,  page  505. 

^^The  case  of  Great  Britain  as  laid  before  the  Tribunal  of 
Arbitration,  convened  at  Geneva.  Washington :  Government 
Printing  Office,  1872.     Volume  III.,  page  46. 

^^ Papers  relating  to  Foreign  Affairs,  accompanying  the  Annual 
Message  of  the  President  to  the  First  Sessio?i  of  the  Thirty-eighth 
Congress.  Part  I.  Washington :  Government  Printing  Office, 
1864,  pages  I,  3. 

The  following  extracts  from  the  correspondence  between  Lord 


THE    ALABAMA   ARBITRATION.  25 

ral  PopofF  to  San  Francisco  ^  and  subsequently  another 

Palmerston  and  Lord  John  Russell  in  1861  and  1862  will  help  to 
explain  the  policy  of  the  English  Government  during  the  ups  and 
downs  of  the  Union  cause. 

Referring  to  the  strong  opinion  in  May,  1861,  of  the  French 
Minister  to  Washington,  Monsieur  Mercier,  in  favor  of  raising  the 
blockade,  Lord  John  Russell  wrote  on  October  1 7th  of  that  year 
to  Lord  Palmerston  : — 

"There  is  much  good  sense  in  Mercier' s  observations.  But 
we  must  wait.  I  am  persuaded  that,  if  we  do  anything,  it  must 
be  on  a  grand  scale.  It  will  not  do  for  England  and  France  to 
break  a  blockade  for  the  sake  of  getting  cotton.  But,  in  Europe, 
powers  have  often  said  to  belligerents.  Make  up  your  quarrels. 
We  propose  to  give  terms  of  pacification  which  we  think  fair  and 
equitable.  If  you  accept  them,  well  and  good.  But,  if  your 
adversary  accepts  them  and  if  you  refuse  them,  our  mediation  is 
at  an  end,  and  you  must  expect  to  see  us  your  enemies.  France 
would  be  quite  ready  to  hold  this  language  with  us. 

' '  If  such  a  policy  were  to  be  adopted  the  time  for  it  would  be 
the  end  of  the  year,  or  immediately  before  the  meeting  of  Parlia- 
ment." 

The  next  year  Palmerston  wrote  to  Russell : — 

"94  Piccadilly  :  September  14,  1862. 

"My  Dear  Russell, — The  detailed  accounts  given  in  the 
Observer  to-day  of  the  battles  of  August  29  and  30  between  the 
Confederates  and  the  Federals  show  that  the  latter  got  a  very 
complete  smashing ;  and  it  seems  not  altogether  unlikely  that  still 
greater  disasters  await  them,  and  that  even  Washington  or  Balti- 
more may  fall  into  the  hands  of  the  Confederates. 

' '  If  this  should  happen,  would  it  not  be  time  for  us  to  consider 

*°  Aarrative  of  the  Mission  to  Russia,  in  1866,  of  the  Hon. 
Gustavus  Vasa  Fox.  New  York  :  D.  Appleton  and  Company, 
1873,  pages  20,  loi,  107,  III. 


26  THE    ALABAMA    ARBITRATION. 

under  Admiral  Lessovsky  to  NewYork."^   Indeed,  it  was 

whether  in  such  a  state  of  things  England  and  France  might  not 
address  the  contending  parties  and  recommend  an  arrangement 
upon  the  basis  of  separation  ?     *     *     * 
' '  Yours  sincerely, 

"  PALMERSTON." 

Earl  Russell  replied  : — 

"  GoTHA,  September  17,  1862. 

"My  Dear  Palmerston, — Whether  the  Federal  army  is 
destroyed  or  not,  it  is  clear  that  it  is  driven  back  to  Washington, 
and  has  made  no  progress  in  subduing  the  insurgent  States.  Such 
being  the  case,  I  agree  with  you  that  the  time  is  come  for  offering 
mediation  to  the  United  States  Government,  with  a  view  to  the 
recognition  of  the  independence  of  the  Confederates.  I  agree 
further,  that,  in  case  of  failure,  we  ought  ourselves  to  recognize 
the  Southern  States  as  an  independent  State.  For  the  purpose 
of  taking  so  important  a  step,  I  think  we  must  have  a  meeting  of 
the  Cabinet.     The  23d  or  30th  would  suit  me  for  the  meeting. 

' '  We  ought  then,  if  we  agree  on  such  a  step,  to  propose  it  first 
to  France,  and  then,  on  the  part  of  England  and  France,  to  Russia 
and  other  powers,  as  a  measure  decided  upon  by  us. 

' '  We  ought  to  make  ourselves  safe  in  Canada,  not  by  sending 
V    more  troops  there,  but  by  concentrating  those  we  have  in  a  few 
defensible  posts  before  the  winter  sets  in. 

"J.   RUSSELL." 
Then  Palmerston  wrote  : — 

"  Broadlands  :  September  23,  1862. 
"My  Dear  Russell, — ^Your  plan  of  proceeding  about  the 
mediation  between  the  Federals  and  Confederates  seems  to  be  ex- 
cellent.    Of  course,  the  offer  would  be  made  to  both  the  contend- 

"  Narrative  of  the  Mission  to  Russia,  in  1866,  of  the  Hon. 
Gustavus  Vasa  Fox.  New  York  :  D.  Appleton  and  Company, 
1873,  pages  21,  88,  loi,  106,  107,  no,  357. 


THE    ALABAMA    ARBITRATION.  27 

even  hinted  that  Admiral  Lessovsky  had  secret  orders 

ing  parties  at  the  same  time  ;  for,  though  the  offer  would  be  as 
sure  to  be  accepted  by  the  Southerns  as  was  the  proposal  of  the 
Prince  of  Wales  by  the  Danish  Princess,  yet,  in  the  one  case  as  in 
the  other,  there  are  certain  forms  which  it  is  decent  and  proper  to 
go  through. 

' '  A  question  would  occur  whether,  if  the  two  parties  were  to 
accept  the  mediation,  the  fact  of  our  mediating  would  not  of  itself 
be  tantamount  to  an  acknowledgment  of  the  Confederates  as  an 
independent  State. 

' '  Might  it  not  be  well  to  ask  Russia  to  join  England  and  France 
in  the  offer  of  mediation  ?     *     *     * 

' '  We  should  be  better  without  her  in  the  mediation,  because 
she  would  be  too  favorable  to  the  North ;  but  on  the  other  hand 
her  participation  in  the  offer  might  render  the  North  the  more 
willing  to  accept  it. 

' '  The  after  communication  to  the  other  European  powers 
would  be  quite  right,  although  they  would  be  too  many  for  media- 
tion. 

"As  to  the  time  of  making  the  offer,  if  France  and  Russia 
agree — and  France,  we  know,  is  quite  ready,  and  only  waiting  for 
our  concurrence — events  may  be  taking  place  which  might  render 
it  desirable  that  the  offer  should  be  made  before  the  middle  of 
October. 

"  It  is  evident  that  a  great  conflict  is  taking  place  to  the  north- 
west of  Washington  [Antietam],  and  its  issue  must  have  a  great 
effect  on  the  state  of  affairs.  If  the  Federals  sustain  a  great  de- 
feat, they  may  be  at  once  ready  for  mediation,  and  the  iron  should 
be  struck  while  it  is  hot.  If,  on  the  other  hand,  they  should  have 
the  best  of  it,  we  may  wait  awhile  and  see  what  may  follow.  *  *  * 
* '  Yours  sincerely, 

"  PALMERSTON." 

As,  however,  the  Confederates  were  unable  to  follow  up  their 
successes,    and    the   Unionists    had    the    larger    population  and 


28  THE    ALABAMA    ARBITRATION. 

that,  in  case  of  an  attack  upon  the  United  States  by  a 
foreign  power,  he  should  place  his  squadron  at  the 
disposal  of  President  Lincoln  ; "  and,  as  at  that  time — 

resources,  it  became  more  likely  that  the  latter  would  ultimately 
win.  The  British  Cabinet,  when  it  assembled  towards  the  end  of 
October,  1862,  decided  to  do  nothing,  and,  a  month  later,  it  re- 
fused to  join  France  in  the  offer  to  mediate  that  Napoleon  the 
Third  made. 

The  Life  of  Lord  John  Russell,  by  Spencer  Walpole.  London, 
1889.     Second  Edition.     Volume  II.,  pages  344,  349-352. 

See  also  Charles  Francis  Adams,  by  his  son,  Charles  Francis 
Adams.  Boston  and  New  York,  1900,  pages  280-290.  "  Black- 
wood's'^  History  of  the  United  States,  by  Frederick  S.  Dickson. 
Philadelphia:  George  H.  Buchanan  &  Co.,  1896.  Blackwood' s 
Edinburgh  Magazine.  Volume  91  (January-June,  1862),  pages 
118,  129;    volume  92  (July-December,  1862),  page  646. 

^"^  The  following  letter  from  George  Peirce,  Esq. ,  of  the  Phila- 
delphia Bar,  throws  light  upon  the  attitude  of  Russia  towards  the 
United  States  during  the  Civil  War.  Judge  William  S.  Peirce  sat 
in  the  Court  of  Common  Pleas  of  Philadelphia  from  1866  to  his 
death  in  1887.  Andrew  G.  Curtin — "the  War  Governor"  of 
Pennsylvania — was  Governor  of  the  Commonwealth  from  1861  to 
1867.     In  1869  General  Grant  appointed  him  Minister  to  Russia. 

"  Philadelphia, 

"15  March,  1900. 

"My  Dear  Mr.  Balch, — Many  years  ago  my  Father,  the 
late  Judge  Peirce,  told  me  that  there  had  come  into  a  conversation 
between  him  and  Governor  Andrew  G.  Curtin  a  question  of  the 
attitude  of  Russia  toward  the  United  States  during  the  Civil  War, 
and  that  Governor  Curtin  had  given  him  certain  details  of  very 
great  interest  bearing  on  that  question.  Those  details  my  Father 
repeated  to  me,  and  it  gives  me  great  pleasure  to  set  down  for 


THE   ALABAMA   ARBITRATION.  29 

as  Mr.  Laird,-'^  formerly  of  Laird  Brothers,  the  build- 
ers of  the  Alabauia,  had  more  than  once  shown — the 

you  here  the  story  as  told  me  by  him.  In  order  to  understand 
clearly  a  certain  point  referred  to  in  it  I  should  premise  that,  after 
the  war  and  during  the  presidency  of  General  Grant,  the  Grand 
Duke  Alexis,  a  son  of  Czar  Alexander  II.,  came  to  this  country 
and  when  in  Washington  called  on  the  President  and  was  after- 
wards, I  think,  entertained  at  a  dinner  at  the  White  House.  But 
the  President,  unfortunately,  overlooked  making  a  formal  call  on 
the  Grand  Duke,  and  at  no  time  called  on  him  either  formally  or 
informally  during  his  stay  in  Washington.  His  reception,  how- 
ever, by  the  people  at  all  points  visited  by  him  was  enthusiastic. 
"Governor  Curtin,  who  was  the  United  States  Minister  to 
Russia,  said  that  when  he  was  leaving  Russia  to  return  to  this 
country,  he  called  to  take  leave  of  the  Czar  and,  after  a  conver- 
sation of  a  most  friendly  and  cordial  character,  the  Czar,  in 
bringing  the  interview  to  a  close,  requested  the  Minister  to  con- 
vey to  the  people  of  the  United  States  an  expression  of  his  kind 
feeling  and  good  will  toward  them.  Governor  Curtin  thought  it 
strange  that  no  message  was  sent  the  President,  but  said  nothing 
on  the  point,  and  then  went  to  make  his  adieux  to  the  Czarina. 
She  too  was  most  friendly  and  on  saying  farewell,  added,  *  Mr. 
Minister,  you  bear  with  you  my  salutations  and  those  of  Russia 
to  the  people  of  your  country.'  Governor  Curtin  said,  '  And  is 
there  no  message  to  the  President  ?  '  '  No  ;'  replied  the  Czarina, 
'  there  is  not — my  message  is  to  the  people.  If  you  would  know 
the  reason  ask  Gortschakoff. '  And  so  the  Governor  went  to  see 
Prince  Gortschakoff — he  would  have  gone  in  any  event  to  say 
good-bye — and  asked  him  what  it  all  meant  and  why  there  was 
no  word  to  the  President.     Whereupon  M.  Gortschakoff  sent  for 

^'  Mr.  John  Laird,  M.  /*.,  tipon  yiational  defences.  The 
London  Times  of  October  26th,  1863  ;  Papers  relatiiig  to  Foreign 
Affairs,  accompanying  the  Annual  Message  of  the  President  to 
the  Second  Session,  Thirty-eighth  Congress.  Part  III.  Wash- 
ington :  Government  Printing  Ofifice,  1S65,  pages  259,  260. 


30  THE   ALABAMA   ARBITRATION. 

English  navy  was  inferior  for  defensive  purposes  to 
that  of  the  United    States,  the  presence  of  Admiral 

certain  portefolios  and,  opening  them,  showed  him  :  first,  an  au- 
tograph letter  from  the  Emperor  Napoleon  III.  to  the  Czar,  ask- 
ing him  to  join  France  and  England  in  an  intervention  between 
the  United  States  and  the  States  in  revolt  and  in  a  recognition 
of  the  Confederacy:  second,  a  copy  of  the  Czar's  answer  de- 
clining the  Emperor's  request  and  informing  him  that,  if  France 
and  England  attempted  to  intervene,  Russia  would  give  active 
aid  to  the  United  States  :  third,  a  copy  of  the  instructions  to  the 
Russian  Admiral  in  American  waters  directing  him  to  assemble 
his  fleet  in  the  harbor  of  New  York  and,  on  any  adverse  demon- 
stration made  by  France  and  England,  to  communicate  at  once 
to  the  President  of  the  United  States,  that  the  Russian  fleet  then 
at  New  York  was  at  the  command  of  the  Federal  Government 
and  further,  that,  if  money  was  needed  it  would  be  furnished, 
that  if  more  ships  were  wanted  they  would  be  sent,  and  that  if 
men  were  needed  they  would  be  forthcoming.  *  This' ,  said  M. 
Gortschakofl,  '  is  what  Russia  did  for  you  at  a  time  of  need. 
Your  people  remember  it  and  were  kind  when  Alexis  was 
among  them — your  President  seems  to  have  forgotten  it.  And 
so  the  message  of  my  Masters  was  to  your  people  alone.' 

"  Sometime  after  my  Father  told  me  this,  I  met  Governor 
Curtin  at  an  entertainment  and,  in  conversation  with  him,  I  men- 
tioned the  interest  I  took  in  the  story  repeated  to  me  by  my 
Father,  and  Governor  Curtin  confirmed  the  details  as  here  set 
down  by  me. 

"You  may  observe  that,  as  I  recall  the  story,  the  first  paper 
shown  Governor  Curtin  by  M.  Gortschakoff  simply  asked  Russia 
to  join  France  and  England.  I  do  not  recall  any  assertion  that 
the  Emperor  Napoleon  stated  that  England  was  ready  to  join 
France  or  had  already  joined  her  in  the  purpose.  But  cer- 
tain correspondence  at  that  time  between  Lord  Palmerston  and 
Lord  John  Russell,  which  has  very  recently  come  to  light,  goes 
far  to  show  that  the  Emperor  Napoleon  had  a  very  substantial 


THE    ALABAMA    ARBITRATION.  3  I 

Lessovsky  and  his   ships  in  American  waters  was  an 
important  factor  in  the  game  of  international  poHtics. 

basis  for  a  thought  (I  will  not  venture  to  say  a  promise)  that  he 
could  command  the  co-operation  of  England. 

' '  I  saw  the  Russian  fleet  in  New  York  Harbor  and  remember 
the  demonstrations  of  welcome  given  its  officers  and  men  by  our 
people. 

"Sincerely  yours, 

"GEORGE  PEIRCE. 
"T.  W.  Balch,  Esq'e." 

Under  the  title,  "What  we  Owe  to  Russia,"  an  article — 
written  evidently,  by  some  one  who  heard  the  above  story,  not 
directly  from  Governor  Curtin  himself,  but  only  at  second  or 
even  third  hand — appeared  in  the  New  York  Evening  Express 
of  September  ist,  1874,  on  the  front  page: — "When  Gov. 
Curtin  on  the  eve  of  his  return  to  this  country,  went,  in  his  ca- 
pacity as  Minister  to  Russia,  to  take  formal  leave  of  the  Emperor, 
the  latter  closed  the  conversation  substantially  in  these  words  :  '  I 
wish,  sir,  that  you  would,  on  your  return,  express  my  hearty 
thanks  to  the  American  people  for  the  reception  they  have  given 
my  son,  the  Grand  Duke  Alexis.'  This,  it  will  be  remembered, 
was  shortly  after  General  Grant  had  refused  to  return  Alexis'  call, 
and  the  latter  had  left  Washington  in  disgust.  Gov.  Curtin 
noticed  the  Emperor's  failure  to  send  thanks  to  the  Government 
as  well  as  to  the  people.  He  supposed,  however,  that  it  was  a 
slip  of  the  tongue  until  the  Empress  bade  him  farewell  in  almost 
precisely  the  same  words. 

******* 

"  He  was  invited  by  Gortschakoff  to  a  conference  on  the  sub- 
ject. Three  books  were  brought  in  from  the  archives  of  the 
Foreign  Office.  The  first  contained  an  autograph  letter  from 
Napoleon  III.,  asking  Russia  to  join  with  England  and  France  in 
breaking  up  the  Federal  blockade  and  guaranteeing  th^independ- 


32  THE   ALABAMA   ARBITRATION. 

The  fleet  of  Admiral  Lessovsky,  which  consisted  of 
the  Alexander  Nevski,  the  Osliaba,  the  Peresvet,  the 
Variag,  and  the  Vitiaz,  arrived  in  the  harbor  of  New- 
York  in  the  autumn  of  1863.-^     The  citizens  and  the 

ence  of  the  Confederacy.  The  letter  asserted  that  England  had 
promised  her  co-operation,  which  was  probably  a  lie.  [Compare 
the  Palmerston-Russell  correspondence  on  the  question  of  inter- 
vention, afite  page  25,  note  19.]  The  second  contained  the  Em- 
peror's reply.  He  flatly  declined  the  alliance  proposed  by  Na- 
poleon, and  declared  that,  in  the  event  of  any  European  inter- 
ference in  the  War,  Russia  would  actively  aid  the  North.  The 
third  book  had  within  it  copies  of  the  sealed  orders  given  to 
the  Russian  Admiral,  who,  as  our  readers  will  remember,  brought 
his  fleet  into  New  York  Harbor  during  the  war.  The  orders  di- 
rected him  to  proceed  at  once  with  his  whole  available  force,  to 
New  York  city  ;  to  remain  at  anchorage  there  for  some  time  ; 
and,  in  the  event  of  European  interference  with  the  blockade,  to 
put  himself  and  his  whole  force  at  the  command  of  the  Cabinet  at 
Washington,  and  promise  abundant  and  speedy  reinforcements." 

"  Harper  s  Weekly,  for  October  17th,  1863.  Other  Russian 
war  ships  appear  to  have  joined,  subsequently,  Lessovsky 's  fleet 
in  American  waters.  La  Politiqjie  Frangaise  en  Avierique, 
1861-186^,  by  Henry  Moreau,   Paris,  1864,  page  71,  foot-note. 

On  October  6th,  1863,  Sumner  wrote  to  John  Bright:  "At 
this  moment  -I  am  more  solicitous  about  France  and  England 
than  about  our  military  aflairs.  In  the  latter  there  is  a  tempo- 
rary check,  and  you  know  I  said  long  ago  that  I  was  prepared 
for  further  disaster ;  but  this  can  only  delay,  not  change  the 
result.  Foreign  intervention  will  introduce  a  new,  vast,  and 
incalculable  element ;  it  would  probably  provoke  a  universal  war. 
You  will  observe  the  hobnobbing  at  New  York  with  the  Russian 
admiral.  Why  is  that  fleet  gathered  there  ? ' '  Charles  Stwmer, 
by  Moorfield  Story.     Boston  and  New  York,  1900,  page  247. 


THE   ALABAMA   ARBITRATION.  33 

authorities  of  the  city  gave  the  Russians  a  grand 
welcome.  They  showed  the  Russian  officers  over  the 
fortifications  of  the  port,  gave  them  a  public  reception 
and  held  a  military  review  in   their  honor  ;^  and  the 

"  ' '  Yesterday,  our  city  gave  proofs  of  the  profound  appreciation 
by  the  American  people  of  the  friendly  attitude  which  the  Russian 
Government  has  occupied  toward  our  own,  and  especially  since 
the  beginning  of  the  Southern  Rebellion.  It  was  the  occasion  of 
extending  to  Admiral  Lessofsky  (sic),  and  the  officers  of  the  Rus- 
sian vessels  of  war  now  temporarily  anchored  in  our  harbor,  the 
hospitalities  of  the  city,  in  accordance  with  the  resolutions  adopted 
by  the  Common  Council  and  approved  by  the  Mayor.  No  unusual 
effort  had  been  given  to  give  publicity  to  the  proposed  ceremonies, 
and  mere  idle  curiosity  to  see  the  military  and  civic  display  was 
not  sufficient  to  have  drawn  forth  the  immense  concourse  of 
people  which,  with  enthusiastic  plaudits  and  shouts  of  welcome, 
greeted  our  transatlantic  visitors.  The  occasion  was  a  grand 
ovation,  and  in  its  proportions  as  well  as  the  enthusiasm  that 
characterized  it,  was  as  gratifying  to  our  distinguished  guests  as 
it  was  unexpected."  The  New  York  Tribune,  October  2d,  1863, 
page  3. 

During  the  mission  to  Russia  of  the  Hon.  G.  V.  Fox,  then 
Assistant  Secretary  of  the  Navy,  Captain  Murray,  in  responding 
at  a  banquet  at  the  Merchant's  Club  of  Saint  Petersburg  to  the 
toast,  proposed  by  the  Russians,  "The  health  of  our  masters, 
the  Officers  of  the  American  Navy,"  said  in  part : — 

"In  bringing  across  the  ocean,  the  sympathies  of  a  great 
people,  the  vessels -of- war  which  I  have  the  honor  to  represent 
have  come  freighted  with  a  cargo  more  precious  than  the  wealth 
of  the  Orient  or  the  mines  of  California  ;  but  we  were  not  the 
first  to  bear  across  the  ocean  wares  as  treasured.  I  shall  never 
forget  the  thrill  of  joy  that  pervaded  America  when  the  Russian 
fleet,  under  Admiral  Lessovsky,  anchored  in  the  harbor  of  New 
York  and  spread  the  glad  tidings  that  one  great  nation  sided  with 


34  THE    ALABAMA    ARBITRATION. 

siofnificance  of  these  festivities  were  the  more  marked 
in  that  an  Eng-Hsh  fleet,  to  whom  only  the  usual  cour- 
tesies were  extended,  was  also  in  the  harbor  at  the  time. 
Afterwards  Admiral  Lessovsky  took  his  squadron  into 
Chesapeake  Bay  and  up  the  Potomac  River ;  and 
President  Lincoln  and  Secretary  Seward  gave  the 
Russians  a  most  cordial  welcome  at  Washington.^*'  In 
view  of  the  sympathetic  attitude  taken  by  the  Russian 
Government  towards  the  United  States  from  the  be- 
ginning of  the  Civil  War  on  the  one  hand,'^^  and  the 

us  in  our  troubles.  It  is  always  a  pleasure  to  renew  the  remem- 
brance of  such  national  sympathy,  and  I  am  rejoiced  that  the 
duty  of  toasting  the  Russian  Navy  has  devolved  on  me.  It  is 
always  agreeable  to  drink  to  our  friends,  our  sympathizers,  our 
alUes." 

Narrative  of  the  Mission  to  Russia,  in  1866,  of  the  Hon.  Gus- 
tavus  Vasa  Fox.  New  York  :  D.  Appleton  and  Company,  1873, 
page  162. 

^^  Papers  relating  to  Foreign  Affairs  accompanying  the  Annual 
Message  of  the  Preside^it  to  the  Second  Sessio7i  of  the  Thirty- 
eighth  Congress.  Part  III.  Washington  :  Government  Printing 
Office,  1865,  page  279. 

"  Papers  relating  to  Foreign  Affairs  accompanying  the  Annual 
Message  of  the  President  to  the  First  Session  of  the  Thirty -eighth 
Congress.  Part  II.  Washington  :  Government  Printing  Office, 
1864,  pages  763,  765,  767,  769,  779.  Abraham  Lincoln,  by  John 
G.  Nicolay  and  John  Hay.  New  York,  1890.  Volume  VI., 
pages  63-66.  Charles  Sumner,  by  Moorfield  Story.  Boston 
and  New  York,  1900,  page  339. 


THE    ALABAafA    ARBITRATION.  35 

Mexican  expedition   carried  on  by  Louis  Napoleon  ^ 

^^Quelques  Pages  d'' Histoire  Contemporaine .  Lettres  Poli- 
tiques  by  Prevost-Paradol.  Paris,  Michel  Levy  Freres.  Deuxi- 
eme  S^rie,  1864,  page  201  et  seq.  Troisieme  Serie,  1866,  page 
166.  Comme7itaire  sur  les  Elements  du  Droit  Inter^iational  et 
sur  I '  Histoire  des  progres  du  Droit  des  Gens  de  Heyiry  Whea- 
ton.  Precede  d'u?ie  notice  sur  la  carriere  diplomatique  de  M. 
Wheaton  by  William  Beach  Lawrence.  F.  A.  Brockhaus, 
Leipzig,  1869,  Volume  IL,  pages  ■^'^f^'^^'] ,  passim. 

The  following  letters  from  Richard  Cobden  to  Charles  Sumner 
throw  a  flood  of  light  on  the  Anglo-American  relations  during 
the  Civil  War  ;  but  some  of  the  letters  that  passed  between  Lord 
Palmerston  and  Lord  John  Russell  (see  ayite  page  25,  note  19) 
show  that  the  English  Cabinet  was  not  nearly  so  friendly  to  the 
Union  as  Cobden  supposed. 

"  Athen^um  Club,  London, 
^^  Private.  "  2  April,  1S63. 

"My  Dear  Sumner. 

"On  receipt  of  your  letter  I  communicated  privately  with 
Lord  Russell,  urging  him  to  be  more  than  passive  in  enforcing 
the  law  respecting  the  building  of  ships  for  the  Confederate 
government.  I  especially  referred  to  the  circumstance  that  it 
was  suspected  that  some  ships  pretended  to  be  for  the  Chinese 
government  were  really  designed  for  that  of  Richmond,  and  I 
urged  him  to  furnish  Mr.  Adams  with  the  names  of  all  the  ships 
building  for  China  and  full  particulars  where  they  were  being 
built.  This  Lord  Russell  tells  me  he  had  already  done,  and  he 
seems  to  promise  fairly.  Our  government  are  perfectly  well  in- 
formed of  all  that  is  being  done  for  the  Chinese, 

"  Now  there  are  certain  things  which  can  be  done  and  others 
which  cannot  be  done  by  our  government.  We  are  bound  to  do 
our  best  to  prevent  any  ship  of  war  being  built  for  the  Confeder- 
ate government,  for  a  ship  of  war  can  only  be  used  or  owned 
legitimately  by  a  government.     But  with  munitions  of  war  the 


36  THE    ALABAMA    ARBITRATION. 

and  the  building  of  the  Alabama  and  other  Confeder- 

case  is  different.  They  are  bought  and  sold  by  private  merchants 
for  the  whole  world,  and  it  is  not  in  the  power  of  governments 
to  prevent  it.  Besides  your  own  government  have  laid  down 
repeatedly  the  doctrine  that  it  is  no  part  of  the  duty  of  govern- 
ments to  interfere  with  such  transactions  for  which  they  are  not 
in  any  way  responsible.  I  was  therefore  very  sorry  that  Mr. 
Adams  had  persisted  in  raising  an  objection  to  these  transactions 
in  which  by  the  way  the  North  has  been  quite  as  much  involved 
as  the  South.  If  you  have  read  the  debate  in  the  House  on 
the  occasion  when  Mr.  Forster  brought  up  the  subject  last  week, 
you  will  see  how  Sir  Roundell  Palmer,  the  Solicitor  General, 
and  Mr.  Laird  the  shipbuilder  availed  themselves  of  this  opening 
to  divert  attention  from  the  real  question  at  issue — the  building 
of  war-ships  to  the  question  of  selling  munitions  of  war — in  which 
latter  practice  it  was  shown  you  in  the  North  were  the  great 
participators. 

"You  must  really  keep  the  public  mind  right  in  America  on  this 
subject.  Do  not  let  it  be  supposed  that  you  have  any  grievance 
against  us  for  selling  munitions  of  war.  Confine  the  question 
to  the  building  of  ships  in  which  I  hope  we  shall  bring  up  a 
strong  feeling  on  the  right  side  here. 

"  I  remain  truly  yours, 

"R.   COBDEN." 

"  MiDHURST,  22   May,  1863. 
' '  Private. 

"  My  Dear  Sumner. 

"  I  called  on  Lord  Russell  and  read  every  word  of  your  last 
long  indictments  against  him  and  Lord  Palmerston,  to  him.  He 
was  a  little  impatient  under  the  treatment,  but  I  got  through 
every  word.  I  did  my  best  to  improve  on  the  text  in  half-an- 
hours  conversation. 

Public  opinion  is  recovering  its  senses.  John  Bull  you  know 
has  never  before  been  a  neutral  when  great  naval  operations  have 


THE    ALABAMA    ARBITRATION.  37 

ate  cruisers  in  England  on  the  other  hand,  the  public 

been  carried  on,  and  he  does  not  take  kindly  to  the  task.  But 
he  is  becoming  gradually  reconciled.  He  also  now  begins  to 
understand  that  he  has  acted  illegally  in  applauding  those  who 
furnished  ships  of  war  to  prey  on  your  commerce.  //  will  not  be 
repeated.  I  cannot  too  often  deplore  the  bungling  mismanage- 
ment on  your  side  which  allowed  the  two  distinct  questions  of 
selling  munitions  of  war,  and  the  equipping  of  privateers  to  be 
mixed  up  together.  It  has  confused  the  thick  wits  of  our  people, 
and  made  it  difficult  for  those  who  were  right  on  this  side  on  the 
Foreign  Enlistment  Act  to  make  the  public  understand  the  dif- 
ference between  what  was  and  what  was  not  a  legal  transaction. 
In  fact  your  Foreign  Office  played  into  the  hands  of  our  politicians 
by  affording  them  the  means  of  mystification.  If  a  plain,  simple, 
short  and  dignified  declamation  had  been  at  first  made  against  the 
fitting  out  of  ships  of  war,  with  clear  statement  of  the  law,  and  a 
brief  recital  of  what  your  government  had  done  under  similar 
circumstances,  to  us,  it  would  have  been  impossible  for  our 
government  to  have  resisted  it.  But  when  you  opened  fire  on  us 
for  not  stopping  the  export  of  arms  and  munitions  of  war,  you 
offered  an  easy  victory  to  our  lawyers,  and  gave  them  an  oppor- 
tunity of  escaping  in  a  cloud  of  dust  from  the  real  question  at 
issue. 

Jk  5jC  "TT  5]^  ^  '1^  'P 

' '  Yours  very  truly, 

"R.  COBDEN." 

"  MiDHURST,  Sussex,  7  Aug.,  1863. 
"  My  Dear  Sumner. 

*****  *  * 

' '  Though  we  have  given  you  such  good  ground  of  complaint  on 
account  of  the  Cruisers  which  have  left  our  ports,  yet  you  must 
not  forget  that  we  have  been  the  only  obstacle  to  what  would  have 
been  almost  a  European  recognition  of  the  South.     Had  England 


38  THE    ALABAMA    ARBITRATION. 

looked  on  the  visit  of  the  Russian  fleet  as  a  mark  of 
sympathy  and  encouragement. 

joined  France  they  would  have  been  followed  by  probably  every 
other  State  of  Europe,  with  the  exception  of  Russia.  This 
is  what  the  Confederate  agents  have  been  seeking  to  accomplish. 
They  have  pressed  recognition  on  England  and  France  with  per- 
sistent energy  from  the  first.  I  confess  that  their  eagerness  for 
European  intervention  in  some  shape  has  always  given  me  a 
strong  suspicion  of  their  conscious  weakness.  But  considering 
how  much  more  we  have  suffered  than  other  people  from  the 
blockade,  this  abstinence  on  our  part  from  all  diplomatic  inter- 
ference is  certainly  something  to  our  credit,  and  this  I  attribute 
entirely  to  the  honorable  attitude  assumed  by  our  working  pop- 
ulation. 

*****  *  * 

' '  Yours  very  truly, 

"RIC.  COBDEN." 

The  Avierican  Historical  Review.     Volume  II.     New  York, 
1897,  pages  309,  311,  313. 


CHAPTER    II. 

Towards  the  close  of  the  Civil  War,  the  temper  of 
the  American  people  against  England  was  thoroughly 
roused,  and  a  hostile  demonstration  at  Washington 
would  have  met  with  a  hearty  response  throughout 
the  country.^^    The  situation  was  not  encouraging  for 

^'At  the  eleventh  annual  meeting  of  the  National  Association 
for  the  Promotion  of  Social  Science  (September,  1867),  Mr. 
David  Ross,  of  the  English  Bar,  in  discussing  international  arbi- 
tration, said : — 

' '  During  a  somewhat  prolonged  visit  to  the  United  States  in 
the  year  1865,  I  talked  freely  and  frequently  with  men  of  all  con- 
ditions of  life  in  the  Northern  and  Western  States,  and  none  of 
them,  so  far  as  I  can  recollect,  had  the  slightest  ill-will  to  England 
on  account  of  the  Trent  affair,  because  they  seemed  to  think 
that  England  was  right  in  the  extreme  course  she  adopted  ;  but  I 
met  comparatively  few  who  could  talk  with  common  patience  of 
the  Alabama  depredations,  and  I  doubt  if  I  met  one  who  would 
have  raised  his  voice  for  peace  if  the  President  of  the  United 
States  had  decided  that  redress  must  be  had  by  war. ' '  Transac- 
tio7is  of  the  National  Association  for  the  Promotion  of  Social 
Sciejice.  Edited  by  G.  W.  Hastings,  LL.  D.,  General  Secretary 
of  the  Association.  London:  Longmans,  Green,  Reader  &  Dyer, 
1868,  page  174. 

Sumner  wrote  to  Cobden,  on  March  i6th,  1863:  "I  am 
anxious,  very  anxious,  on  account  of  the  ships  building  in  Eng- 
land  to    cruise   against  our  commerce.      Cannot  something  be 

C39) 


40  THE   ALABAMA   ARBITRATION. 

a  peaceful  settlement.  The  English  Government 
throughout  had  assumed  an  attitude  such  as  to  pre- 
clude, apparently,  all  hope  of  an  adjustment. 

In  1 864,  Thomas  Balch — a  member  of  the  Philadel- 
phia Bar  then  residing  at  Paris,  who  was  present  at 
Cherbourg  during  the  fight  between  the  Kearsarge 
and  the  Alabama  (June  19th,  1864)^ —  proposed,  after 

done  to  stop  them  ?  Our  people  are  becoming  more  and  more 
excited,  and  there  are  many  who  insist  upon  war.  A  very  im- 
portant person  said  to  me  yesterday :  '  We  are  now  at  war  with 
England,  but  the  hostilities  are  all  on  her  side.'  "  Charles 
Stunner,  by  Moorfield  Storey.  Boston  and  New  York,  1900, 
page  243. 

Sumner  wrote  on  August  4th,  1863,  to  John  Bright:  "The  sec- 
ond cause  of  anxiety  is  in  our  relations  with  England.  Your  gov- 
ernment recklessly  and  heartlessly  seems  bent  on  war.  *  *  * 
A  leading  merchant  said  to  me  this  morning  that  he  would  give 
fifty  thousand  dollars  for  war  between  England  and  Russia,  that 
he  might  turn  English  doctrines  against  England.  The  feeling  is 
very  bitter."  Charles  Sumner,  by  Moorfield  Storey.  Boston 
and  New  York,  1900,  page  246. 

^°On  Thursday,  June  30th,  1864,  some  of  the  American  colony 
in  Paris  gave  a  dinner,  at  short  notice,  to  Captain  Winslow,  at 
Phillippe's  on  the  Rue  Montorgueil,  at  that  time  the  leading  res- 
taurant of  Paris.  Besides  Captain  Winslow  and  a  few  of  his 
officers,  there  were  present :  Mr.  Dayton,  the  American  Minister 
to  France,  John  Bigelow,  the  American  Consul  at  Paris,  Thomas 
Balch,  Mr.  Beckwith,  John  Camac,  Mr.  Chad  wick,  G.  H.  Coster, 
William  L.  Dayton,  Jr.,  W.  E.  Johnston,  Mr.  Jones,  Mr.  Lang- 
don,  V.  F.  Loubat,  John  Monroe,  Mr.  Pennington,  John  Reu- 
bell,  George  T.  Richards,  Joseph  Swift,  Stewart  Thorndike,  J.  J. 
Vanderkemp  and  others. 


THE    ALABAMA    ARBITRATION.  4I 

mature  reflection  and  looking  up  precedents,  to  vari- 
ous continental  jurists,  that  the  differences  between  the 

The  dinner  that  was  served  to,  as  one  of  the  participants  put 
it,  "  Our  Hero  of  the  Kearsarge'^  was  as  follows  : — 

Menu. 

Potage  a  la  Bisque  et  Consomm6  Quenelles  et  Laitues. 

Relev6. 

Turbot  deux  sauces.  Filets  Ody  sauce  tomates. 

Jambon  d'Yorck  aux  ^pinards. 

Entrees. 

Filet  de  Boeuf  a  la  jardiniere.  Poulardes  brais^es  truffles. 

Cotelettes  d'agneau  Maintenon  fin. 

Salade  a  la  russe.  Mayonnaise  de  homard. 

Punch  a  la  Polonaise. 

Rot. 

Dindonneau  nouveau.  Canetons  a  la  rouennaise. 

Entremets. 

Haricots  flageoUets  maitre  d' hotel.  Pois  a  la  franjaise. 

Croutes  a  la  parisienne  et  aux  ananas. 

Mac^doine  de  fruits  glacis. 

Dessert. 

Mr.  Dayton's  letter  accepting  the  invitation  of  the  committee 
was  as  follows  : — 

"  Thursday,  A.  M.. 
' '  6  Rue  de  Presbourg. 
"  My  Dear  Sir, — It  will  give  me,  as  well  as   my  son,  much 
pleasure  to  join  you  at  dinner  at  Phillippe's  this  (Thursday)  even- 
ing at  six  o'clock. 

"Very  truly  yours, 

"WILLIAM  L.  DAYTON. 

"  Thos.  Balch,  Esq., 

"48  Av:  Gabriel." 


1/ 


42  THE    ALABAMA    ARBITRATION. 

United  States  and  England  arising  out  of  the  cruise  of 
ihe.  Alabama  and  kindred  causes,  should  be  argued  be- 
fore an  International  Court  of  Arbitration.  In  Novem- 
ber, 1864,  Mr.  Balch,  during  a  visit  home,  urged  upon 
some  of  his  friends,  among  them  General  Nathanial  P. 
Banks,  the  submission  of  the  Anglo-American  differ- 
ences to  such  a  court.^^  General  Banks  requested  Mr. 
Balch  to  see  President  Lincoln,  and  arranged  an  inter- 
view. The  President  questioned  Mr.  Balch,  then  lately 
returned  from  Europe,  largely  about  trans-Atlantic 
affairs.  The  President  ridiculed  the  Mexican  Empire 
and  said  that  he  considered  it  "a  pasteboard  concern 
on  which  we  won't  waste  a  man  nor  a  dollar.  It  will 
soon  tumble  to  pieces  and,  may  be,  bring  the  other 
down  with  it."  To  Mr.  Balch's  suggestion  that  the 
difficulties  with  England  should  be  argued  before  a 
Court  of  Arbitration,  the  President  said  that  he  thought 
it  might  be  possible  in  the  future,  that  it  was  "a  very 
amiable  idea,  but  not  possible  just  now,  as  the  millen- 


'^^ Inter7iational  Courts  of  Arbitration,  by  Thomas  Balch,  1874. 
Reprinted  at  Philadelphia,  1899.  Henry  T.  Coates  &  Co.,  page 
9,  note  6. 

General  Nathanial  P.  Banks,  who  was  elected  Governor  of 
Massachusetts  in  1857,  1858  and  1859,  served  three  years  in  the 
Civil  War;  in  1864  he  was  elected  to  Congress,  and  except  that 
he  failed  of  re-election  in  1872,  continued  to  serve  in  the  lower 
House  until  1877.  For  a  number  of  years  he  was  chairman  of 
the  Committee  on  F'oreign  Relations. 


THE    ALABAMA    ARBITRATION.  43 

nium  is  still  a  long  way  off."  But  he  added  :  "There 
is  no  possible  risk  of  a  quarrel  with  England,  as  we  ^ 
have  enough  on  our  hands.  One  quarrel  is  enough 
for  a  nation  or  a  man  at  a  time."  As  to  the  proposed 
Court  of  Arbitration  he  said:  "Start  your  idea.  It 
may  make  its  way  in  time,  as  it  is  a  good  one."  On 
arriving  in  London,  on  Christmas  Day,  1864,  Mr. 
Balch  spoke  of  it  to  several  friends,  but  found  no 
one  to  treat  it  other  than  as  the  conceit  of  a  well- 
meaning  enthusiast,  except  Richard  Cobden.^^ 

'''At  the  beginning  of  January,  1865,  Richard  Cobden  wrote  to 
Mr.  Balch  :— 

"  MiDHURST,  3d  January,  1865. 

"  My  Dear  Mr.  Balch: — I  was  very  sorry  to  miss  the  op- 
portunity of  seeing  you  in  London.  There  are  very  many  topics 
on  which  I  should  have  liked  to  have  talked  with  you.  *  *  *  I 
think  it  depends  entirely  on  the  discretion  of  your  own  authorities 
at  Washington  to  remain  at  peace  with  all  the  world  until  your 
civil  war  is  ended.  I  do  not  say  that  you  have  not  grievances  ; 
but  one  quarrel  at  a  time,  as  Mr.  Lincoln  says,  is  enough  for  a 
nation  or  an  individual.  With  the  British  Government  I  do  not 
think,  on  the  whole,  you  have  as  much  to  be  angry  about  as  to  be 
grateful  for  what  it  has  refused  to  do  in  conjunction  with  France 
and  other  powers.  Against  individual  British  shipbuilders  and 
capitalists  I  admit  you  have  very  just  grounds  of  grievance  and 
I  have  said  as  much  publically.  The  French  Government  has  no 
doubt  given  you  just  ground  of  complaint  by  their  occupation  of 
Mexico.  But  I  don't  think  your  Congress  shows  much  wisdom 
in  trying  to  push  Mr.  Lincoln  into  hostilities  on  that  subject  at 
present,  and  I  hope  he  will  give  the  '  House '  a  hint  that  they 
may  find  full  employment  in  domestic  affairs,  particularly  in  their 


44  THE    ALABAMA    ARBITRATION, 

Finally,  Mr.  Balch  made  his  plan  public  in  an  open 
letter.      More  than  one  editor  refused  to  publish  it. 

finances,  for  the  present.     The  Canadian  affair  will  be  peaceably 
arranged.     *     *     * 

' '  My  wife  and  daughter  join  me  in  kind  remembrances  to  Mrs. 
Balch  and  all  your  circle  and  I  remain, 

* '  Very  truly  yours, 

"R.  COBDEN." 

Here  is  an  extract  from  another  letter  of  Richard  Cobden  to 
Mr.  Balch:— 

"  MiDHURST,  17th  Feb.,  1865. 

5f!  ♦  !(C  w  w  Sft  5(C 

' '  There  never  was  a  more  absurd  canard  than  that  invented  by 
the  Southern  sympathizers — that  England  and  France  contem- 
plated an  intervention.  And  there  is  almost  as  great  absurdity  in 
the  programme  which  the  same  party  has  cut  out  for  you  when 
the  war  ends — viz. ,  that  you  are  to  begin  a  war  with  France  or 
England  or  all  the  world.  Now,  I  have  a  very  different  work  in 
store  for  you.  When  the  war  ceases,  you  will  be  like  two  line-of- 
battle  ships  after  a  desperate  struggle  ;  all  hands  will  be  required 
to  clear  the  wreck,  repair  damages  in  hull  and  rigging,  look  after 
the  wounded  and  bury  the  dead.  There  will  be  great  suffering 
among  all  classes  before  you  return  to  a  normal  state  of  things. 
You  have  been  in  a  saturnalia  of  greenbacks  and  Government 
expenditure,  which  may  be  likened  to  the  pleasant  excitement  of 
alcohol.  But  peace  will  be  the  headache  after  the  debauch,  with 
the  unpleasant  tavern  reckoning." 

Some  of  the  letters  that  passed  between  Lord  Palmerston  and 
Lord  John  Russell  upon  the  question  of  intervention  show  that 
they  thought  of  joining  Napoleon  the  Third  against  the  Union. 
See  ante,  page  25,  note  19. 

Tht  New  York  Tribune,  April  21st,  1865,  page  8.  Interna- 
tional Courts  of  Arbitration,  by  Thomas  Balch.  Edition  of  1899, 
page  18,  note  14. 


THE    ALABAMA    ARBITRATION.  45 

But  Horace  Greeley,  who  feared  no  unpopularity 
where  a  cause  was  entitled,  as  he  thought,  to  a  hear- 
ing, gave  it  a  place  in  the  columns  of  the  New  York 
Tribune,  May  13th,  1865.^^  The  letter  was  addressed 
to  the  able  and  conscientious  correspondent  of  that 
journal  at  Paris,  Mr.  W.  H.  Huntington,  and  was  as 
follows  : — 

"ENGLAND   AND   THE  UNITED   STATES: 
' '  A  letter  from  Thomas  Balch. 

"Paris,  March  31st,  1865. 

"My  Dear  Sir, — You  asked  me  to  put  in  writ- 
ing the  observations  which  I  made  to  you  yesterday 
touching  the  outstanding  questions  between  England 
and  the  United  States.  I  should  be  sorr)'  to  make 
you  read  all  that  you  so  kindly  listened  to.  It  would 
be  to  tax  you  rather  too  severely.  But  the  current  of 
my  remarks  was  to  this  effect : 

"I.  That  both  England  and  the  United  States  pre- 
ferred claims  which,  if  not  judiciously  managed,  might 
and  perhaps  would  lead  to  war. 

^  This  letter  will  be  found  in  the  New  York  Tribune  of  May 
13th,  1865,  on  the  fourth  page,  in  the  upper  right  hand  corner. 
The  Tribune  of  that  date  can  be  found  in  the  New  York  Public 
Library  (Astor,  Lenox  and  Tilden  Foundations),  in  a  number 
of  other  American  libraries,  and  in  the  British  Museum. 


46  THE    ALABAMA    ARBITRATION. 

"II.  That  the  American  claims  were  chiefly  the 
depredations  of  the  Alabama,  whilst  it  seemed  from 
the  tenor  of  Mr.  Layard's  recent  speech,  that  the 
British  claims  were  also  such  as  to  rest  upon  ques- 
tions of  law.  Neither  set  of  claims  was  strictly  na- 
tional ;  they  were  rather  those  of  individuals,  mer- 
chants, shipowners,  and  others. 

"  III.  That  as  to  such  claims,  war  was  a  barbarous 
manner  of  enforcing  them  ;  that  the  most  successful 
war  would  after  all  be  a  most  expensive  and  unsatis- 
factory process  of  litigation;  and  that  the  civilized 
and  Christian  way  of  ascertaining  their  validity  and 
extent  should  be  by  arbitration. 

'TV.  That  the  best  manner  of  composing  such  a 
Court  of  Arbitration  would  be,  that  each  party  should 
select  some  competent  jurist,  those  two  to  select  an 
umpire.  The  claims  to  be  presented,  proved  and 
argued  before  this  Court,  whose  decisions  should  be 
final  and  without  appeal. 

"V.  That  such  a  proposition,  proceeding  from  our 
Government,  would,  without  doubt,  receive  the  coun- 
tenance and  support  of  all  intelligent  Englishmen.  It 
is  true  that  some  of  the  speeches  recently  made  in 
Parliament  about  us  and  Canada  are  of  a  nature  to 
discourage  such  expectations.     On  the  other  hand,  it 


THE    ALABAMA    ARBITRATION.  47 

must  be  borne  in  mind  that  these  gentlemen  form  a 
class  apart ;  that  it  is  their  political  faith  to  believe  and 
say  unseemly  things  of  Republican  institutions,  of  the 
men,  habits  of  life,  and  principles  of  action  developed 
under  them.  But  it  was  long  ago  that  the  wisest  of 
men  gave  us  the  measure  of  such  people,  and  the 
experience  of  mankind  has  confirmed  his  judgment. 

"VI.  Such  a  proposition  from  our  Government 
would  at  once  quiet  all  the  foolish  alarms  which  have, 
or  appear  to  have,  taken  possession  of  so  many  persons 
in  England.  It  would  also  uphold  and  strengthen  all 
the  advocates  of  progress.  It  would  give  greater  force 
to  their  arguments  in  favor  of  just  reforms  and  liberty ; 
and  this  not  only  in  Great  Britain,  but  throughout 
Europe.  The  abandonment  of  the  old  system  of  arbi- 
tration by  a  reference  to  a  Sovereign,  more  or  less 
unfit  from  the  very  nature  of  his  position,  and  the 
introduction  of  a  tribunal,  almost  republican  in  its 
character,  whose  decisions  would  have  a  weight  as 
precedents,  an  authority  heretofore  unknown  as  expo- 
sitions of  international  law,  would  be  no  trifling  events 
in  the  march  of  Democratic  Freedom. 

"VII.  Such  a  proposition  would  also  be  in  accord 
with  our  traditional  policy  of  peace  and  goodwill 
towards  men. 


48  THE    ALABAMA    ARBITRATION. 

"  The  most  serious  objection  that  has  been  urged, 
so  far  as  I  have  heard,  against  such  a  Court  of  Ar- 
bitration, is  the  difficulty  of  finding  gentlemen  not 
already  biased  by  their  feelings  or  in  some  way 
committed  in  their  opinions. 

"This  objection  applies,  however,  in  a  measure,  to 
all  human  tribunals ;  it  would  apply  to  arbitration  by 
a  sovereign,  and  would  leave  us  no  solution  other  than 
the  dread  arbitrament  of  war.  For  myself,  I  cannot 
believe  that  there  are  not  to  be  had  in  England  and 
America  gentlemen  of  the  requisite  learning,  experi- 
ence, and  impartiality  for  a  position  so  dignified  and 
useful.  At  all  events,  there  are  many  eminent  men 
in  Europe  in  every  way  qualified  for  this  high  duty.  I 
have  in  my  mind's  eye  a  Swiss  publicist,  who,  after 
having  filled  the  most  responsible  stations  at  home,  is 
now  worthily  representing  his  people  in  their  most 
important  diplomatic  post.^'*  The  decisions  rendered 
by  him  and  gentlemen  like  him  would  be  such  as  two 
great  and  free  nations  could  accept  with  satisfaction. 
I  dare  say  he  has  friendly  feelings  towards  the  Repub- 
lic, but  he  cannot  be  wanting  in  like  sentiments  for  the 
old  Champion  of  Liberty.  The  preferences  of  such 
enlightened  statesmen  could  not  possibly  be  of  a  char- 

"  This  referred  to  that  most  worthy,  high-minded  gentleman, 
Dr.  Kern,  formerly  President  of  the  Federal  Council,  but  then 
Minister  to  France. 


THE    ALABAMA    ARBITRATION.  49 

acter  to  influence  their  judgments,  and  the  parties 
most  interested  might  well  be  content  to  abide  their 
award. 

"  Believe  me,  my  dear  sir,  yours  sincerely, 

-THOMAS   BALCH."^ 

"In  1874,  Professor  James  Lorimer,  the  Regius  Professor  of 
Public  Law  and  of  the  Law  of  Nations  in  the  University  of  Edin- 
burgh, wrote  to  Mr.  Balch  a  letter  concerning  International  Arbi- 
tration, in  which  he  said  : — 

' '  Considering  the  interest  which  is  everywhere  taken  in  Inter- 
national Arbitration  at  present,  and  more  especially  with  a  view 
to  the  discussion  that  will  take  place  at  the  meeting  of  the  Inter- 
national Institute  at  Geneva  in  October,  I  think  it  very  desirable 
that  you  should  republish  the  letter  which  you  addressed  to  the 
'New  York  Tribune'  in  1865,  adding  to  it  such  suggestions  as 
your  observation  of  subsequent  events  may  enable  you  to  offer. 

"  I  do  not  know  to  what  extent  that  letter,  or  anything  else 
you  said  or  did,  may  have  led  to  the  negotiation  of  the  Treaty  of 
Washington,  by  which  the  threatened  war  between  our  countries 
is  believed  by  many  to  have  been  averted  ;  but  certain  it  is,  that 
the  letter  was  a  very  remarkable  anticipation  of  the  treaty  which 
was  negotiated  six  years  afterward.  The  tribunal  which  you 
suggested  almost  exactly  corresponded  to  that  appointed  under 
Article  XII.  of  the  Treaty,  and  even  the  great  tribunal  which  sat 
at  Geneva  under  Article  I.  was  only  a  fuller  realization  of  your 
original  conception,  by  a  larger  infusion  of  the  neutral  element 
than  you  had  contemplated,  into  the  Court.  In  this  respect  it 
certainly  was  an  improvement.  But  for  the  presence  of  the 
neutral  judges  it  is  doubtful  if  the  work  would  have  been  brought 
to  a  successful  issue,  and  I  think  it  very  worthy  of  consideration 
whether,  on  all  future  occasions,  the  Commissioners  ought  not  to 
be  appointed  exclusively  from  neutrals." 

See  X\\s.  New  York  Tribune,  April  nth,  1874.     International 


50  THE    ALABAMA    ARBITRATION. 

The  publication  of  this  letter  proved  that  the  propo- 
sition was  not  popular  at  that  time  in  the  United  States. 
Writing  seven  years  later  of  this  event  Mr.  Balchsaid: 
"At  home  I  was  met  in  a  less  satisfactory  manner. 

Courts  of  Arbitration  by  Thomas  Balch,  1874.  Reprinted  at 
Philadelphia,  1899,  Henry  T.  Coates  &  Co.,  page  28. 

In  the  above  letter  Professor  Lorimer  points  out  how  closely 
Mr.  Balch' s  suggestion  was  followedintheTreaty  of  Washington, 
as  may  be  seen  by  a  comparison  of  the  letter  printed  in  the 
Tribu7ie  on  May  13th,  1865,  and  Articles  XII.  and  I.  of  the 
treaty. 

In  Article  XII.  of  the  Treaty  of  Washington  (1871),  after  a 
statement  of  some  matters  other  than  the  Alabama  claims  that 
should  be  referred  for  settlement  to  three  Commissioners,  pro- 
vision was  made  for  the  appointment  of  the  Commissioners  in  the 
following  manner  :  ' '  One  Commissioner  shall  be  named  by  the 
President  of  the  United  States,  one  by  Her  Britannic  Majesty,  and 
a  third  by  the  President  of  the  United  States  and  Her  Britannic 
Majesty  conjointly  ;  and  in  case  the  third  Commissioner  shall  not 
have  been  so  named  within  a  period  of  three  months  from  the  date 
of  the  exchange  of  the  ratification  of  this  treaty,  then  the  third 
Commissioner  shall  be  named  by  the  Representative  at  Washing- 
ton of  His  Majesty  the  King  of  Spain.  In  case  of  the  death, 
absence,  or  incapacity  of  any  Commissioner,  or  in  the  event  of  any 
Commissioner  omitting  or  ceasing  to  act,  the  vacancy  shall  be 
filled  in  the  manner  hereinbefore  provided  for  making  the  original 
appointment  ;  the  period  of  three  months  in  case  of  such  substitu- 
tion being  calculated  from  the  date  of  the  happening  of  the 
vacancy. ' '  Treaties  and  Conveiitions  concluded  between  the  United 
States  of  America  and  other  Powers  since  fuly  ^th,  lyjd.  Depart- 
ment of  State.  Washington:  Government  Printing  Office,  1889, 
page  484. 

In  Article  I. ,  the  Court  of  Arbitration  to  consist  of  five  Arbitra- 
tors to  try  the  '' Alabama QXdXvas'^  was  provided  for  as  follows  : — 


THE    ALABAMA    ARBITRATION.  5  I 

The  Civil  War  was  near  its  end,  and  the  passions 
aroused  by  it  were  at  their  highest.  I  received  more 
than  one  angry  rebuff,  and  sometimes  the  contempt 
which  the  idea  excited  was  not  always  civil.  Some 
good  people  went  so  far  as  to  say  that  I  had  lived  so 

"  One  [Arbitrator]  shall  be  named  by  the  President  of  the 
United  States  ;  one  shall  be  named  by  Her  Britannic  Majesty  ; 
His  Majesty  the  King  of  Italy  shall  be  requested  to  name  one  ; 
the  President  of  the  Swiss  Confederation  shall  be  requested  to 
name  one ;  and  His  Majesty  the  Emperor  of  Brazil  shall  be  re- 
quested to  name  one. 

' '  In  case  of  the  death,  absence,  or  incapacity  to  serve  of  any 
or  either  of  the  said  Arbitrators,  or,  in  the  event  of  either  of  the 
said  Arbitrators  omitting  or  declining  or  ceasing  to  act  as  such,  the 
President  of  the  United  States,  or  Her  Britannic  Majesty,  or  His 
Majesty  the  King  of  Italy,  or  the  President  of  the  Swiss  Confed- 
eration, or  His  Majesty  the  Emperor  of  Brazil,  as  the  case  may  be, 
may  forthwith  name  another  person  to  act  as  Arbitrator  in  the 
place  and  stead  of  the  Arbitrator  originally  named  by  such  head 
of  a  State. 

' '  And  in  the  event  of  the  refusal  or  omission  for  two  months 
after  receipt  of  the  request  from  either  of  the  high  contracting 
parties  of  His  Majesty  the  King  of  Italy,  or  the  President  of  the 
Swiss  Confederation,  or  His  Majesty  the  Emperor  of  Brazil,  to 
name  an  Arbitrator  either  to  fill  the  original  appointment  or  in 
the  place  of  one  who  may  have  died,  be  absent,  or  incapacitated, 
or  who  may  omit,  decline  or  from  any  cause  cease  to  act  as  such 
Arbitrator,  His  Majesty  the  King  of  Sweden  and  Norway  shall  be 
requested  to  name  one  or  more  persons,  as  the  case  may  be,  to 
act  as  such  Arbitrator  or  Arbitrators."  Treaties  and  Conventions 
concluded  between  the  United  States  of  America  and  other  Powers 
since  July  4,  1776.  Department  of  State.  Washington :  Gov- 
ernment Printing  Office,  1889,  page  479. 


52  THE    ALABAMA    ARBITRATION. 

long  abroad  that   I  had  become    *a   Britisher.* 

Not  encouraging  for  my  idea  of  a  mild-mannered  way 
of  cutting  the  knot  of  difficult  national  questions." 
Still  Mr.  Balch  did  not  despair,  and  continued  to  work 
among  his  friends  and  acquaintances,  both  at  home 
and  abroad,  and  soon  he  found  in  Professor  James 
Lo rimer,  of  the  University  of  Edinburgh,  and  Pre- 
vost-Paradol,  of  V Academie  Frangaise,  two  powerful 
helpers.^ 

^*  James  Lorimer,  Regius  Professor  of  Public  Law  and  of  the 
Law  of  Nations  in  the  University  of  Edinburgh,  was  born  in 
1818  and  died  in  1890.  He  was  a  founder  of  V  Institut  de  Droit 
International,  and  the  author  of  The  Institutes  of  Law  as  de- 
termined by  the  Principles  of  Nature  (1872),  The  Institutes  of 
the  Law  of  Nations:  A  Treatise  of  the  fural  Relatio7is  of 
Separate  Political  Communities  (1883-84),  and  several  other 
valuable  books  on  social  science  and  international  law.  Lucien 
Anatole  Prevost-Paradol,  the  brilliant  author  of  Ouelques  Pages 
d^ Histoire  Coyitemporaine  (i 862-1 866)  and  La  France  Nouvelle 
(1868),  and  a  member  of  V  Academic  Franfaise,  was  the  leading 
writer  in  the  fournal  des  Debats  against  the  Empire.  In  the  days 
of  the  Imperial  censorship,  as  some  one  said,  "Prevost-Paradol 
excellait  avec  J.  J.  Weiss  dans  I'art  de  tout  faire  entendre  sans 
tout  exprimer."  Subsequently,  when  Ollivier  assumed  the  re- 
sponsibilities of  Government  under  the  liberal  Empire,  Pr6vost- 
Paradol  accepted  the  post  of  Minister  to  Washington. 


CHAPTER  III. 

On  August  30th,  1865,  Earl  Russell  in  a  long  re- 
view of  the  acts  and  rights  of  the  two  Governments 
in  the  controversy  between  them,  referred  to  Mr. 
Adams's  remark  upon  arbitration  in  the  latter's  letter 
of  October  23d,  1863,  and  said: — 

"In  your  letter  of  October  23,  1863,  you  were 
pleased  to  say  that  the  Government  of  the  United 
States  is  ready  to  agree  to-  any  form  of  arbitration. 

"  Her  Majesty's  Government  have  thus  been  led  to 
consider  what  question  could  be  put  to  any  Sovereign 
or  State  to  whom  this  very  great  power  should  be 
assigned. 

"It  appears  to  Her  Majesty's  Government  that 
there  are  but  two  questions  by  which  the  claim  of 
compensation  could  be  tested.  The  one  is :  Have 
the  British  Government  acted  with  due  diligence,  or, 
in  other  words,  with  good  faith  and  honesty,  in  the 
maintenance  of  the  neutrality  they  proclaimed  ?  The 
other  is :  Have  the  Law  Officers  of  the  Crown  prop- 
erly understood  the  Foreign  Enlistment  Act  when 
they  declined,  in  June  1862,  to  advise  the  detention 
and  seizure  of  the  *  Alabama'  and  on   other  occasions 

(53) 


54  THE    ALABAMA    ARBITRATION. 

when  they  were  asked  to  detain   other    ships  build- 
ing or  fitting  in  British  ports? 

"It  appears  to  Her  Majesty's  Government,  that 
neither  of  these  questions  could  be  put  to  a  foreign 
Government  with  any  regard  to  the  dignity  and  char- 
acter of  the  British  Crown  and  the  British  nation. 

"Her  Majesty's  Government  are  the  sole  guardians 
of  their  own  honor.  They  cannot  admit  that  they 
may  have  acted  with  bad  faith  in  maintaining  the  neu- 
trality they  professed.  The  Law  Officers  of  the  Crown 
must  be  beld  to  be  better  interpreters  of  a  British 
statute  than  any  foreign  Government  can  be  presumed 
to  be.  Her  Majesty's  Government  must  therefore 
decline  either  to  make  reparation  and  compensation 
for  the  captures  made  by  the  'Alabama'  or  to  refer 
the  question  to  any  foreign  State. 

"  Her  Majesty's  Government  conceive  that  if  they 
were  to  act  otherwise,  they  would  endanger  the  posi- 
tion of  neutrals  in  all  future  wars. 

"  Her  Majesty's  Government  are,  however,  ready 
to  consent  to  the  appointment  of  a  Commission  to 
which  shall  be  referred  all  claims  arising  during  the 
late  civil  war,  which  the  two  Powers  shall  agree  to 
refer  to  the  Commissioners."  "'^^ 

"  The  Official  Correspondence  on  the  Claims  of  the  United 
States  hi  respect  to  the  '■'Alabama.'"  (Published  by  Earl  Rus- 
sell.)    London:  Longmans,  Green  &  Co.,  1867,  page  147. 


THE    ALABAMA    ARBITRATION.  55 

On  September  17th,  1865,  Francis  Lieber,  the  inter- 
national law  publicist,  addressed  to  Secretary  Seward 
an  open  letter  on  arbitration  which  was  printed  in  the 
New  York  Thnes,  of  September  2  2d.^^  Mr.  Lieber 
suggested  that  the  questions  at  issue  should  be  sub- 
mitted to  the  law  faculty  of  some  continental  univer- 
sity, like  Heidelberg  or  Leyden.  His  letter  was  as 
follows : — 

"INTERNATIONAL   ARBITRATION. 

"A  letter  to  Hon.  William  H.  Seward,  Secretary  of  State, 
by  Francis  Lieber. 

"Dear  Sir:  Permit  me  to  address  to  you  in  the 
form  of  a  letter,  some  remarks  on  a  subject  which  de- 
serves the  attention  of  every  American  citizen  and 
every  lover  of  right  and  progress.  You,  Sir,  at  the 
head  of  our  foreign  affairs,  influencing  and  guiding, 
in  a  great  measure,  our  highest  transactions  abroad 
and  at  home,  will,  I  respectfully  trust,  pardon  me  for 
sending  forth  this  letter  with  your  name  as  that  of 
its  public  recipient,  since  its  topic  is  international 
arbitration. 

^^ There  is  a  copy  of  the  New  York  Times  of  September  22nd, 
1865,  in  the  New  York  Public  Library  (Astor,  Lenox  and  Tilden 
Foundations).  For  an  account  of  Francis  Lieber  and  his  work 
see  Francis  Lieber,  by  Lewis  R.  Harley,  Ph.D.,  New  York: 
The  Columbia  University  Press,  1899. 


56  THE    ALABAMA    ARBITRATION. 

'*  The  United  States  have  large  claims  upon  Great 
Britain  for  the  injury  done  them  by  the  armed  vessels 
fitted  out  against  them  in  English  ports  contrary  to 
the  laws  of  neutrality.  On  the  other  hand  it  is  under- 
stood that  Great  Britain  exhibits  counter  claims  against 
the  United  States.  The  subject  is  in  every  respect,  a 
serious  one.  How  are  such  claims  and  counter  claims 
to  be  settled  ? 

"International  disputes  of  a  grave  character  can 
only  be  concluded  in  one  of  the  following  four  ways  : 
The  discussion  may  be  drawn  on  for  so  long  a  time 
that  greater  questions  arise  in  the  course  of  events, 
and  the  original  subject  is  dropped  by  its  mention  be- 
ing omitted  in  a  new  treaty  which  may  be  concluded. 
This  has  happened,  indeed,  but  such  a  settlement  by 
default  as  it  were,  is  not  likely  to  occur  again,  in  mod- 
ern times,  when  the  parties  at  issue  are  large  and 
powerful  nations,  and  the  subject  in  question  is  of 
commensurate  magnitude. 

"  Or,  the  contending  governments  may  diplomati- 
cally settle  their  difficulties  and  seal  the  settlement 
by  special  treaty.  It  is  not  probable  either  that 
America  and  England  will  arrive  at  a  conclusion  of 
their  differences  by  this  means ;  certainly  not  within  a 
reasonably  short  time.  All  protraction,  however,  of 
international  difficulties,  especially  between  great 
nations  destined  to   have  the  closest  intercourse,  is 


THE    ALABAMA    ARBITRATION.  57 

both  injurious  and  dangerous.  It  interferes  with  the 
international  spirit  of  peace,  without  which  a  purely 
formal  peace,  that  is  mere  non-existence  of  war, 
amounts  only  to  international  quiescence  shorn  in  a 
great  measure  of  the  best  realities  of  peace.  This 
is  especially  the  case  with  all  those  nations  who  ac- 
knowledge that  the  first  and  perhaps  the  highest  law 
of  modern  extending  civilization  is  the  commandment 
that  there  shall  be  an  increasing  and  widening  family 
of  nations,  bound  together  by  the  great  law  of  nations. 
At  any  rate  this  communication  is  written  on  the  sup- 
position that  the  present  English-American  disagree- 
ment will  not  be  settled  by  diplomatic  transactions, 
or  cannot  thus  be  concluded  within  any  reasonable 
period  of  time. 

"  The  third  way  of  stopping  international  discussion 
is  war.  A  discussion  may  certainly  thus  be  stopped 
for  a  time,  but  neither  party  can  expect  the  settlement 
of  pecuniary  claims  by  rushing  into  war,  since  new 
claims  would  necessarily  arise,  and  each  belligerent 
would  be  obliged  to  incur  expenditures  greater  than 
any  indemnities  claimed  of  the  opponent  before  the 
war.  Neither  ourselves  nor  the  English  would  expect 
to  indemnify  themselves  by  conquest,  which,  more- 
over, is  generally  a  poor  indemnification,  so  far  as  the 
settlement  of  pecuniary  claims  is  concerned.  The 
enormous    sums  which    Napoleon    drew   by   way    of 


58  THE   ALABAMA   ARBITRATION. 

'contributions,'  from  the  conquered  countries,  did 
not  lessen  the  heavy  taxation  in  France,  made  neces- 
sary by  his  wars.  Going  to  war  with  England  on  ac- 
count of  our  pecuniary  claims  would  simply  amount 
to  the  attempt  of  killing  a  fly,  crawling  on  a  costly 
piece  of  sevre,  by  throwing  a  stone  at  the  insect,  from 
fear  that  it  may  soil  the  precious  vase. 

"There  remains,  then,  arbitration  only,  as  the 
fourth  method  of  ending  international  differences. 
International  arbitration,  freely  resorted  to  by  power- 
ful governments,  conscious  of  their  complete  inde- 
pendence and  self-sustaining  sovereignty,  is  one  of 
the  foremost  characteristics  of  advancing  civilization — 
of  the  substitution  of  reason,  fairness  and  submission 
to  justice,  for  defying  power  or  revengeful  irritation. 
It  belongs  to  modern,  indeed  to  recent  times;  yet 
although  it  is  a  noble  characteristic  of  the  more  recent 
times,  it  still  bears  uncouth  features  of  coarser  periods, 
and  demands  improvement  and  development.  The 
law  of  nations  is  awaiting  them. 

"  The  administration  of  all  law  may  be  said  to 
originate  with  arbitration,  and  all  law,  as  it  develops 
itself  further  and  further,  largely  returns  to  courts  of 
arbitration,  justly  and  beautifully  called,  in  French 
and  German,  Courts  of  Peace.  The  Roman  civil  law 
acknowledged  arbitration.  The  courts  of  arbitration, 
with  elected  and    non-professional  judges,  to  whom 


THE   ALABAMA    ARBITRATION.  59 

parties  voluntarily  go  to  obtain  equitable  arbitra- 
ments, with  the  exclusion  of  professional  counsel, 
have  spread  all  over  Prussia,  Denmark,  and  other 
countries,  settling  annually  immense  amounts  in  liti- 
gation. 

*'  The  ancient  Greeks,  with  their  many  city-states 
and  confederacies  of  the  same  language  and  religion, 
and  with  a  similar  culture,  knew,  if  not  of  interna- 
tional, yet  of  inter-statal  arbitration — temporary  com- 
missions appointed  by  contending  cities,  to  whose 
judgment  the  parties  swore  to  submit.  For,  it  will 
be  hardly  necessary  to  state,  that  the  characteristic 
feature  of  these  arbitrations  is  the  voluntary  sub- 
mission of  the  parties  to  a  freely  chosen  judge,  with 
a  binding  and  solemn  promise  of  the  litigants  to 
abide  in  good  faith  by  his  adjudication. 

"That  international  arbitrament,  however,  which 
consists  in  a  sovereign  power  chosen  by  two  contend- 
ing equally  sovereign  powers,  or  by  governments  rep- 
resenting entire  nations,  rendering  judgment,  and 
this  judgment  being  submitted  to  in  good  faith  by 
two  potent  sovereigns — this  arbitration  belongs  to  the 
most  recent  times,  and  is  considered  by  international 
jurists,  and  by  the  students  of  the  history  of  civiliza- 
tion, one  of  the  encouraging  signs  of  real  progress. 

"  So  far,  however,  monarchs  have  been  almost  ex- 
clusively chosen  as  arbiters,  which  is  inconvenient  on 


6o  THE   ALABAMA    ARBITRATION. 

several  accounts.  It  may  happen  that  the  parties 
may  be  unable  to  unite  in  the  election  of  a  monarch 
or  government,  suiting  both  alike.  The  present  case 
between  the  United  States  and  Great  Britain  seems 
a  case  in  point.  We  would  probably  select  none  but 
the  Emperor  of  Russia,  if  we  were  at  all  willing  to 
submit  our  case  to  a  European  government,  and 
if  we  were  convinced  of  a  sufficient  acquaintance 
with  the  law  of  nations  as  well  as  with  maritime 
law  in  the  officials  of  that  high  military  govern- 
ment ;  while  Russia,  in  all  probability,  would  not 
suit  Great  Britain. 

"The  other  and  great  inconvenience  in  selecting  a 
monarch  as  arbiter  is  the  fact  that  the  only  one  who 
is  publicly  known  as  the  judge,  is  the  very  one  who, 
in  the  course  of  things,  does  not  occupy  himself  with 
the  case,  cannot  do  so,  and  is  not  expected  by  any 
one  to  do  so. 

"When  an  international  difficulty  Is  brought  before 
a  monarch,  or  even  before  the  chief  representative  of 
a  republic,  who  is  now  always  the  chief  executive,  what 
is  the  course  which  things  take  ?  The  Minister  of 
Justice,  or  some  similar  high  functionary,  is  directed 
to  take  the  case  in  hp,nd ;  he  appoints  some  counsel- 
lor or  other  officer,  possibly  a  committee,  to  make  a 
report  to  him,  which  he  lays  before  the  nominal  arbi- 
ter.    Those  who  really  decide  the  case  are  unknown. 


THE    ALABAMA    ARBITRATION.  6 1 

or  at  least  bear  no  public,  and  feel  no  last  responsi- 
bility. In  many  cases  of  this  sort  exist  the  grave 
inconvenience  and  serious  inconsistency  of  handing 
over  questions  of  the  highest  law  and  most  elevated 
justice  to  an  executive  and  not  to  an  authority  of  judi- 
cial renown  and  responsibility.  How  much  easier 
would  be  the  acquiescence  in  the  judgment;  how  much 
more  becoming  to  civilized  communities,  and  how 
much  nobler  in  every  way  would  be  the  selection  of 
judges  from  among  jurists  of  a  high  reputation  for 
their  comprehensive  knowledge  and  unyielding  loyalty 
to  justice  and  jural  truth  !  There  is,  probably,  no 
fair-minded  Englishman  or  American  who  would  not 
submit  the  whole  amount  of  the  claims  in  question  far 
more  readily  to  a  Hugo  Grotius,  than  to  the  ruler  of 
any  empire  now  existing.  Still,  it  may  be  observed 
that  there  is  not  always  a  Hugo  Grotius  at  hand ;  nor 
can  individuals,  however  unsullied  in  reputation  and 
resolute  in  speaking  out  what  is  right,  be  expected, 
in  all  countries,  to  be  able  wholly  to  separate  them- 
selves from  government  pressure.  It  would  be  diffi- 
cult, in  the  present  state  of  our  civilization,  to  make 
two  contending  nations  agree  on  a  single  person, 
not  a  monarch,  and  assign  to  a  living  jurist  that 
authority  which  the  Congress  of  Vienna  granted, 
among  others,  to  Grotius,  freely  quoted  in  that  great 
international    council.      Nor   would    it    be    easy    to 


62  THE    ALABAMA    ARBITRATION. 

persuade  a  private  individual  to  serve  as  umpire, 
could  the  contending  parties  be  made  to  agree  as  to 
the  desirable  international  judge ;  but  could  they  not 
be  induced  to  agree  to  lay  the  whole  subject  at  issue 
before  the  law  faculty  of  some  foreign  university,  if 
both  parties  are  sincerely  disposed  to  obtain  only 
what  is  due  to  them  and  what  is  strictly  right  ?  The 
members  of  such  a  faculty  are  generally  men  who 
have  already  made  a  name  which  they  hope  will  go 
down  to  posterity  in  law  and  its  literature ;  they  know 
the  whole  weight  and  meaning  of  a  grave  decision  in 
the  highest  regions  of  the  law,  and  would  be  conscious 
that  in  an  international  case  their  decision,  while 
probed  and  scanned  by  the  foremost  intellects  of  their 
race,  would  pass  over  as  part  and  parcel  into  that  law 
which  prevails  between  independent  nations,  which  is 
enforced  by  equity  and  reason,  and  is  gradually  ex- 
tending even  beyond  that  race  which  happily  created 
it :  for,  I  am  writing  this  paper,  when  not  only  the 
Turks,  Egypt  and  Persia  have  given  in  their  adhesion 
to  many  of  the  main  points  of  our  law  of  nations,  but 
when  a  translation  of  Wheato7i  s  Law  of  Nations  into 
Chinese  has  arrived  in  this  country,  and  is  now  in  the 
library  of  your  department. 

"In  the  present  case  it  is  taken  for  granted  that 
neither  party  desires  nor  hopes  to  be  able  to  outwit 
the  other.    The  American  and  the  English  nations  are 


THE    ALABAMA    ARBITRATION.  63 

too  great  to  descend  to  diplomatic  artifice ;  and  if 
there  were  no  objection  to  such  a  course  or  to  such 
attempts,  on  the  ground  of  international  high-mind- 
edness  and  equity,  prudence  and  expediency  alone 
would  dictate  to  abandon  so  unworthy  a  desire.  The 
American  and  English  are  people  at  once  too  clear- 
sighted and  too  stubborn  ;  too  much  on  a  level  of  in- 
tellect and  civilization,  and  they  agree  too  much  in 
their  knowledge  and  conceptions  of  justice,  law  and 
fairness,  to  hope  much  from  diplomatic  cunning  or 
from  successful  overreaching.  But  if  they  really  wish 
to  settle  their  differences  on  the  principles  of  law,  it 
may  be  asked  whether  there  is  a  single  English-speak- 
ing man  on  this  side  of  the  Atlantic,  or  on  the  eastern 
side,  who  would  doubt  that  such  a  faculty  of  law  as 
that  of  the  University  of  Berlin,  with  the  international 
jurist  Heffter  in  it ;  or  if  Prussia  were  considered  too 
much  of  a  great  Power,  the  law  faculty  of  Heidelberg 
or  of  Leyden  would  be  a  fitter  body  to  decide  our 
differences  than  any  Emperor  or  any  republic,  A 
republic  could  not  decide  the  case  as  a  republic,  but 
must  hand  it  over  to  some  commission.  A  law 
faculty,  especially  that  of  a  renowned  university  in  a 
minor  State,  seems  to  form  a  tribunal  fitter  than  any 
other  that  can  be  imagined  for  many,  perhaps  most,  of 
the  great  international  cases.  It  would  seem  almost 
made  for  so  high  a  function,  and  the  selection  of  a 


64  THE    ALABAMA    ARBITRATION. 

law  faculty  as  a  court  of  international  arbitration, 
would  be  a  measure  worthy  of  being  inaugurated  by 
the  two  freest  large  nations,  and  whose  governments 
are  to  be  numbered,  in  diplomacy,  among  the  least 
unreasonable  and  uncandid  ones. 

"  Let  the  United  States  and  Great  Britain  agree 
upon  the  University ;  let  them  obtain  the  permission 
of  its  government  to  appeal  to  the  law  faculty,  which 
would  doubtless  be  readily  granted ;  let  the  two 
powers  distinctly  settle  the  remuneration  which  each 
in  equal  shares  is  to  grant  to  the  faculty,  excluding 
all  other  immediate  or  prospective  presents  or  dis- 
tinctions ;  let  each  contending  party  appoint  its  com- 
missioners, as  many  as  each  party  chooses,  and  no- 
body would  doubt  that  a  just  judgment  would  be 
obtained. 

"The  compensation  out  of  place,  as  it  would  seem 
in  an  international  case,  is  nevertheless  taken  into 
consideration  here,  for  the  reasons  that  the  case  at 
issue  would  occupy  a  very  large  space  of  time  of  the 
high  judges ;  and  in  order  to  forestate  every  particle 
of  that  machinery  which  consists  in  part  of  ribbons 
and  orders,  snuff-boxes  and  titles,  presents  of  money 
or  land,  direct  or  prospective.  Not  that  such  judges 
would  be  likely  to  be  swayed  by  means  of  this  kind  in 
their  judgment.  That  tribunal,  with  nations  for  its 
clients,  would  doubtless  be  conscious  of  standing,   in 


THE    ALABAMA    ARBITRATION.  65 

turn,  before  a  greater  tribunal — before  their  pro- 
fession in  all  history ;  but  all  seeming  attempt  or  faint 
suspicion  of  an  attempt  at  lowering  so  great  a  court 
to  common  diplomacy  ought  to  be  kept  far  away. 

"  Great  universities  have  been  appealed  to  in 
former  times,  though  it  was  generally  in  theological 
matters.  Within  the  different  countries,  such  as 
France  or  Germany,  they  have  indeed  been  appealed 
to,  and  still  are  occasionally  so,  at  least  in  the  last 
mentioned  country,  in  civil  and  penal  matters.  Why 
should  we  not  seize  upon  these  institutions,  them- 
selves characteristic  of  our  own  civilization,  in  inter- 
national matters  ?  The  adoption  of  the  proposed 
plan  would  be  a  signal  step  in  the  progress  of  the 
race.  There  is  no  nobler  sight  than  the  strong — be 
they  single  men  or  nations — laying  down  their 
strength  like  a  sword  by  their  side,  saying  :  '  We 
will  abide  by  the  judgment  of  the  just;  let  justice 
be  done.' 

'*  This  proposition  does  not  interest  my  mind  by 
the  charms  of  novelty.  I  communicated  a  similar  one 
to  a  prominent  statesman  in  Congress  as  far  back  as 
the  time  of  the  Oregon  question,  and  it  was  clearly 
elicited  in  my  mind  when  the  decision  of  King  Will- 
iam of  the  Netherlands,  concerning  the  northeastern 
boundary  became  known  in  this  country.  Circum- 
stances did  not  call  for  a  closer  consideration,  but  I 


66  THE    ALABAMA    ARBITRATION. 

now  venture  to  lay  it  before  you,  Sir,  in  a  more  elab- 
orate form,  and  tr)'  to  attract  the  attention  of  the 
public  to  it  through  your  eminent  name. 

"Whether  the  two  nations  to  whom  the  spread  of 
civilization  over  the  globe  has  been  assigned  more 
than  to  any  other  people,  will  accept  this  way  of 
settling  differences  in  the  present  case  or  not,  there  is 
no  doubt  in  my  mind  that  the  Cis-Caucasian  race  will 
rise,  at  no  very  distant  day,  to  the  selection  of  such 
umpires,  far  more  dignified  than  a  crowned  arbitrator 
can  be. 

*'  I  have  the  honor  to  subscribe  myself,  with  the 
highest  regard, 

"Your   very    obedient    servant, 

"FRANCIS   LIEBER. 

"Washington,  D.  C,  Sept.  17,  1865." 

On  September  27th,  1865,  five  days  after  the  pub- 
lication of  Mr.  Lieber  's  letter  to  Secretary  Seward, 
the  latter  wrote  to  Mr.  Adams  : — 

"In  a  note  of  yours  to  Earl  Russell,  written  so  long 
ago  as  the  23d  of  October,  1863,  i"  regard  to  the 
difficulties  in  our  relations  then  developed,  you 
remarked  as  follows  :  '  I  am  directed  to  say  there  is 
no  fair  and  equitable  form  of  conventional  arbitra- 
ment or  reference  to  which  they,'  the  United  States, 
'  will  not  be  willing  to  submit.' 


THE    ALABAMA    ARBITRATION.  67 

"  Earl  Russell  at  this  late  day  recalls  the  friendly 
remark  thus  incidentally  made  by  you,  and,  manifestly 
treating  it  in  the  character  of  a  formal  proposition  for 
arbitration  still  existing,  if  not  newly  tendered,  states 
reasons  why  such  a  mode  of  adjustment  would  not 
be  acceptable  to  her  Britannic  Majesty's  government. 
You  are  authorized,  therefore,  to  say,  that  whatever 
may  have  heretofore  been  or  might  now  have  been 
thought  by  us  of  umpirage  between  the  two  powers, 
no  such  proposition  for  arbitration  of  the  existing 
differences  will  henceforward  be  insisted  upon  or 
submitted  to  by  this  government. 

"  In  disallowing  our  assumed  proposition  for  arbi- 
tration, Earl  Russell  distinctly  declares  that  Her  Maj- 
esty's government  must  decline  to  make  reparation 
or  compensation  for  the  captures  which  were  made 
by  the  Alabama. 

"  Nevertheless,  Earl  Russell  announces  that  Her 
Majesty's  government  are  ready  to  consent  to  the 
appointment  of  a  commission,  to  which  should  be  re- 
ferred all  claims  which  have  arisen  during  our  civil 
war,  and  which  the  two  powers  should  agree  to  refer 
to  the  commission. 

"  Earl  Russell  is  understood  by  us,  in  submitting 
this  proposition,  as  implying,  that  among  those  claims 
which  Her  Britannic  Majesty's  government  would  not 
agree  to   refer   to  such  a  joint  commission    are   the 


68  THE    ALABAMA    ARBITRATION. 

claims  heretofore  presented  in  behalf  of  American 
citizens  or  others  for  redress  and  reparation  in  cases 
of  captures  and  spoliations  made  by  the  Alaba7ua,  and 
other  vessels  of  her  class,  including  even  the  She?ian- 
doah,  now  still  engaged  in  the  same  work  of  depreda- 
tion, which  piratical  vessels,  as  is  alleged  by  the  United 
States,  were  fitted  out,  manned,  equipped,  and  de- 
spatched by  British  subjects  in  British  ports."  ^^ 

Earl  Russell,  on  October  14th,  1865,  in  a  supple- 
mentary letter  to  Mr.  Adams,  further  explained  his 
proposal,  in  his  letter  of  August  30th  preceding,  for 
the  appointment  of  a  Commission.  The  English 
Foreign  Secretary  said  : — 

"Foreign  Office,  Oct.  14,  1865. 

"  Sir  : — I  have  thought  it  best  to  wait  for  the  answer 
to  the  reference  you  have  made  to  your  Government 
before  replying  to  your  last  letter. 

"  But  I  observe  that  you  have  not  clearly  under- 
stood my  proposal  for  the  appointment  of  a  Com- 
mission. 

"  That  proposal  is  made  in  the  following  terms  : — 

"  *  Her  Majesty's  Government  are  ready  to  consent 

^^ Papers  relating  to  Foreign  Affairs  accompanying  the  Annual 
Message  of  the  President  to  the  First  Session  Thirty-ninth  Con- 
gress. Parti.  Washington  :  Government  Printing  Office,  1866, 
page  565. 


THE    ALABAMA    ARBITRATION.  69 

to  the  appointment  of  a  Commission  to  which  shall 
be  referred  all  claims  arising  during  the  late  civil 
war  which  the  two  Powers  shall  agree  to  refer  to 
the  Commissioners.' 

"There  are,  I  conceive,  many  claims  upon  which 
the  two  Powers  would  agree  that  they  were  fair  sub- 
jects of  investigation  before  Commissioners. 

"But  I  think  you  must  perceive  that,  if  the  United 
States  Government  were  to  propose  to  refer  claims 
arising  out  of  the  captures  made  by  the  Alabama  and 
Shenandoah  to  the  Commissioners,  the  answer  of  Her 
Majesty's  Government  must  be,  in  consistency  with 
the  whole  argument  I  have  maintained,  in  conformity 
with  the  views  entertained  by  your  Government  in 
former  times. 

"I  should  be  obliged,  in  answer  to  such  a  proposal, 
to  say — '  For  any  acts  of  Her  Majesty's  subjects  com- 
mitted out  of  their  jurisdiction,  and  beyond  their  con- 
trol, the  Government  of  her  Majesty  are  not  respon- 
sible.' 

"  I  should  say  further,  that  the  appointment  of  a 
Commission  for  such  purpose  would  not  be  consistent 
with  any  practice  usual  among  civilized  nations,  and 
that  it  is  a  principle  well  known  and  well  understood 
that  no  nation  is  responsible  for  the  acts  of  its  citizens 
committed  without  its  jurisdiction,  and  out  of  the 
reach  of  its  control. 


70  THE    ALABAMA    ARBITRATION. 

**  I  should  have  cleared  up  this  point  before,  but  I 
thought  that  the  words  '  which  the  two  Powers  shall 
agree  to  refer  to  the  Commissioners  '  would  put  an 
end  to  any  doubt  upon  the  subject.     I  am,  &c., 

"  RUSSELL."^ 

On  October  17th,  1865,  Mr.  Adams  replied  to 
Earl  Russell's  letters  of  August  30th  and  October 
14th  as  follows  : — 

"  Legation  of  the  United  States, 

"London,  October  17,   1865. 

"  My  Lord, — I  have  the  honor  to  acknowledge 
the  reception  of  your  note  of  the  14th  instant,  ex- 
planatory of  some  portions  of  a  preceding  one  dated 
August  30  last, 

"This  has  reached  me  just  in  season  to  enable  me 
to  dispense  with  the  necessity  of  soliciting  precisely 
that  information.  For  although  the  Government 
which  I  have  the  honor  to  represent  had  already 
understood  your  Lordship's  note  as  substantially  in 
the  same  sense,  it  has  instructed  me  to  ask  the  con- 
firmation of  it  which  has  now  been  supplied. 

^'^The  Official  Correspondaice  on  the  Claims  of  the  United 
States  in  respect  to  the  ''Alabama''  (Published  by  Earl  Russell.) 
London:   Longmans,  Green  &  Co.,  1867,  page  165. 


THE    ALABAMA    ARBITRATION.  7  I 

"  I  am  now  directed  to  inform  your  Lordship  that 
the  contents  of  your  note  of  August  30  have  re- 
ceived the  most  careful  consideration. 

"  With  regard  to  the  reference  which  you  were 
pleased  to  make  to  a  friendly  remark  contained  in  the 
note  which  I  had  the  honor  to  address  to  your  Lord- 
ship on  October  23,  1863 — apparently  considering  it 
in  the  light  of  a  formal  proposal  for  arbitration — I 
am  now  desired,  in  view  of  the  reasons  given  by  your 
Lordship  why  such  a  mode  of  adjustment  would  not 
be  acceptable  to  Her  Majesty's  Government,  to  state 
that,  whatever  may  have  heretofore  been,  or  might 
now  be,  thought  by  the  President  of  umpirage  be- 
tween the  two  Powers,  no  proposition  of  that  kind  for 
the  settlement  of  existing  differences  will  hencefor- 
ward be  insisted  upon,  or  submitted  on  the  part  of 
my   Government. 

"The  proposal  of  some  form  of  Commission  made 
by  your  Lordship  still  remains  under  consideration. 
To  the  end  that  my  Government  may  be  the  better 
enabled  to  make  a  satisfactory  reply  to  it,  I  am  still 
under  the  necessity  of  soliciting  more  information  in 
regard  to  the  precise  nature  of  the  claims  which  Her 
Majesty's  Government  is  disposed  to  agree  to  con- 
sider. I  am  instructed  to  venture  so  far  as  to  ask  the 
favour  of  your  Lordship  to  distinguish  as  well  what 
among  the  classes  of  claims  it  is  willing,  and  what  it 


72  THE    ALABAMA    ARBITRATION. 

would  not  be  willing,  to  refer  to  the  proposed  Com- 
mission.— I  pray,  &c. 

-CHARLES   FRANCIS   ADAMS." « 

A  month  later,  Mr.  Adams  declined  in  behalf  of 
his  Government,  Earl  Russell's  proposal  to  submit 
some  of  the  claims  pressed  by  each  Government 
against  the  other  to  the  consideration  of  a  joint 
commission.  Writing  to  the  Earl  of  Clarendon, 
Mr.  Adams  said  : — 

'•  Legation  of  the  United  States, 

"London,   November  21,    1865. 

"  My  Lord, — I  have  the  honor  to  inform  your 
Lordship  that  the  notes  elicited  by  the  proposal  for 
a  Commission  to  consider  certain  classes  of  claims 
growing  out  of  the  late  difficulties  in  the  United 
States,  made  by  your  predecessor,  the  Right  Honor- 
able Earl  Russell,  in  his  letter  addressed  to  me  on 
August  30  last,  have  received  the  careful  considera- 
tion of  my  Government, 

"Adhering,  as  my  Government  does,  to  the  opinion 
that  the  claims  it  has  presented,  which  his  Lordship 

"  The  Official  Correspondence  on  the  Claims  of  the  United 
States  in  respect  to  the  '' Alabama.''  (Published  by  Earl  Russell.) 
London  :  Longmans,  Green  &  Co.,  page  166. 


THE    ALABAMA    ARBITRATION.  73 

has  thought  fit  at  the  outset  to  exclude  from  consid- 
eration, are  just  and  reasonable,  I  am  instructed  to 
say  that  it  sees  now  no  occasion  for  further  delay  in 
giving  a  full  answer  to  his  Lordship's  proposition. 

"I  am  directed,  therefore,  to  inform  your  Lordship 
that  the  proposition  of  Her  Majesty's  Government 
for  the  creating  of  a  joint  Commission  is  respectfully 
declined.     I  pray,  &c. 

"CHARLES  FRANCIS  ADAMS." -^ 

*^  The  Official  Correspondence  on  the  Claims  of  the  United  States 
in  respect  to  the  ''Alabama."  (Published  by  Earl  Russell.) 
London  :   Longmans,  Green  &  Co.,  page  223. 


CHAPTER  IV. 

There  was  a  growing,  uneasy  feeling  in  England 
that  Earl  Russell's  abrupt  and  absolute  refusal  to 
discuss  the  question  of  liability  by  England  for  the 
Alabama  claims  was  a  mistake.^^  In  this  view  the 
English  were  confirmed  by  the  visit  at  several  of  their 
ports  of  the  double-turretted  monitor,  Miantonomoh.^ 
She  crossed  the  Atlantic  without  trouble,  bearing  to 
Russia  on  a  special  mission  the  Hon.  Gustavus  Vasa 
Fox,  the  Assistant  Secretary  of  the  Navy.  English 
naval  experts  freely  acknowledged  that  there  was  no 
ship  in  the  English  navy  that  could  compete  with  the 

**  This  was  evidenced  in  a  letter,  supposed  to  be  written  by  Mr. 
Olyphant,  a  member  of  Parliament,  who  had  traveled  in  the 
United  States  in  1865,  that  appeared  in  the  London  Times  on 
August  20th,  1866.  It  treated  of  the  neutrality  laws  ;  and,  after 
referring  to  the  strong  feeling  of  resentment  that  existed  in  the 
United  States  against  Great  Britain  on  account  of  the  fitting  out 
of  the  Confederate  cruisers  in  English  ports,  deplored  the  rejec- 
tion by  Lord  Russell  of  all  attempts  to  settle  the  difficulties  by 
arbitration. 

^^ Narrative  of  the  Mission  to  Russia,  in  1866,  of  the  Hon. 
Gustavus  Vasa  Fox.  New  York  :  D.  Appleton  &  Company, 
1873,  pages  39,  40,  43. 

(74) 


THE    ALABAMA    ARBITRATION.  75 

Miantonomoh  ;  and  as  there  were  a  number  of  others 
Hke  her  in  the  United  States  Navy,  Great  Britain,  at 
that  time,  was  not  mistress  of  the  seas.  An  article  in 
the  London  Times,  of  July  17th,  1866,  showed  well 
the  impression  the  Miantonomoh  made  upon  Eng- 
land : — 

"The  royal  visitors  at  Sheerness  on  Saturday,  as 
well  as  the  numerous  pleasure-parties  flocking  thither 
on  the  same  errand,  saw  a  very  extraordinary,  and — 
we  wish  we  could  not  feel  it — a  portentous  spectacle. 
They  saw  a  fabric,  something  between  a  ship  and  a 
diving-bell — the  Romans  would  have  called  it  a  tor- 
toise— almost  invisible,  but  what  there  was  of  it  ugly, 
at  once  invulnerable  and  irresistible,  that  had  crossed 
the  Atlantic  safely,  and  was  anchored  in  our  waters, 
with  the  intention  of  visiting  Russia.  Round  this 
fearful  invention  were  moored  scores  of  big  ships,  not 
all  utter  antiquities,  but  modern,  for  there  were  among 
them  steamships,  generally  screws,  and  therefore  none 
of  them  more  than  twenty  years  old.  These  ships 
form  a  considerable  portion  of  the  navy  of  this  great 
maritime  power,  and  there  was  not  one  of  them  that 
the  foreigner  could  not  have  sent  to  the  bottom  in  five 
minutes,  had  his  errand  not  been  peaceful.  There 
was  not  one  of  these  big  ships  that  could  have 
avenged  the  loss  of  its  companion,  or  saved  itself 
from  immediately  sharing  its  fate.     In  fact,  the  wolf 


76  THE    ALABAMA    ARBITRATION. 

was    in    the    fold,    and    the    whole    flock   was    at    its 

"  45 
mercy. 

The  advisability  of  reopening  the  subject  became 
by  the  latter  half  of  1866  a  topic  of  general  discus- 
sion in  the  English  press ;  and  the  Government — 
Lord  Stanley  had  succeeded  Earl  Russell  as  For- 
eign Secretary — was  understood  to  favor  an  amica- 
ble settlement  of  the  question.  The  Prime  Minis- 
ter, Earl  Derby,  gave  countenance  to  such  a  view 
in  a  speech  at  the  Mansion  House. ^^  The  Times  in 
several  leaders  supported  the  view  that  Earl  Russell 
had  rejected  Mr.  Adams's  demands  on  rather  narrow 
grounds,  and  urged  that  the  claims  were  "  not  for- 
gotten by  the  American  people,"  and  that  they  never 
would  be  forgotten  until  they  were  submitted  to 
"  some  impartial  adjudication."  ^' 

Meanwhile  Lord  Stanley  instructed  the  British 
Minister  at  Washington  to  propose  to  the  American 
Government  a  limited  form   of  arbitration  :  this  dis- 

**  Narrative  of  the  Mission  to  Russia,  in  1866,  of  the  Hon. 
Gustavus  Vasa  Fox.  New  York :  D.  Appleton  &  Company, 
1873,  pages  48,  49. 

*"  Papers  relating  to  Foreign  Affairs,  accompanying  the  Annual 
Message  of  the  President  to  the  Second  Session,  Fortieth  Congress. 
Government  Printing  Office,  1868,  part  I.,  page  25. 

*' The  London  Times,  November  17th,  1866;  January  4th, 
1867. 


THE    ALABAMA    ARBITRATION.  77 

patch,  which  was  as  follows,  the  English  Minister, 
Sir  Frederick  Bruce,  communicated  to  Mr.  Seward 
on  January  7th,    1867  : — 

"Foreign  Office,  November  30,   1866. 
*  *  *  *  -^  * 

"It  is  impossible  for  Her  Majesty's  present  ad- 
visers to  abandon  the  ground  which  has  been  taken 
by  former  Governments,  so  far  as  to  admit  the  liabil- 
ity of  this  country  for  the  claims  then  and  now  put  for- 
ward. They  do  not  think  that  such  liability  has  been 
established  according  to  international  law  or  usage ; 
and  though  sincerely  and  earnestly  desiring  a  good 
understanding  with  the  United  States,  they  cannot 
consent  to  purchase  even  the  advantage  of  that  good 
understanding  by  concessions  which  would  at  once 
involve  a  censure  on  their  predecessors  in  power, 
and  be  an  acknowledgment,  in  their  view  uncalled 
for  and  unfounded,  of  wrong-doing  on  the  part  of  the 
British  Executive  and  Legislature.  But,  on  the  other 
hand,  they  are  fully  alive  to  the  inconvenience  which 
arises  from  the  existence  of  unsettled  claims  of  this 
character  between  two  powerful  and  friendly  Govern- 
ments. They  would  be  glad  to  settle  this  question, 
if  they  can  do  so  consistently  with  justice  and  national 
self-respect ;  and  with  this  view  they  will  not  be  dis- 
inclined to  adopt  the  principle  of  arbitration,  provided 


78  THE    ALABAMA    ARBITRATION. 

that  a  fitting  arbitrator  can  be  found,  and  that  an 
agreement  can  be  come  to  as  to  the  points  to  which 
arbitration  shall  apply. 

"Of  these  two  conditions,  the  former  need  not  be 
at  present  discussed  :  the  latter  is  at  once  the  more 
important  and  the  more  pressing. 

"With  regard  to  the  ground  of  complaint  on  which 
most  stress  is  laid  in  Mr.  Seward's  despatch,  viz.,  the 
alleged  premature  recognition  of  the  Confederate 
States  as  a  belligerent  Power,  it  is  clear  that  no  refer- 
ence to  arbitration  is  possible.  The  act  complained 
of,  while  it  bears  very  remotely  on  the  claims  now  in 
question,  is  one  as  to  which  every  State  must  be 
held  to  be  the  sole  judge  of  its  duty  ;  and  there  is,  so 
far  as  I  am  aware,  no  precedent  for  any  Government 
consenting  to  submit  to  the  judgment  of  a  foreign 
Power,  or  of  an  international  Commission,  the  ques- 
tion whether  its  policy  has  or  has  not  been  suitable 
to  the  circumstances  in  which  it  was  placed. 

"The  same  objection,  however,  does  not  neces- 
sarily apply  to  other  questions  which  may  be  at  issue 
between  the  two  Governments  in  reference  to  the 
late  war ;  and  with  regard  to  these,  subject  to  such 
reservations  as  it  may  hereafter  be  found  necessary  to 
make,  I  have  to  instruct  you  to  ascertain  from  Mr. 
Seward  whether  the  United  States'  Government  will 
be  prepared  to  accept  the  principle  of  arbitration,  as 


THE   ALABAMA    ARBITRATION.  79 

proposed  above.  Should  this  offer  be  agreed  to,  it 
will  be  for  Mr.  Seward  to  state  what  are  the  precise 
points  which,  in  his  opinion,  may  be,  and  ought  to  be, 
so  dealt  with.  Any  such  proposal  must  necessarily 
be  the  subject  of  deliberate  consideration  on  the  part 
of  Her  Majesty's  Government ;  but  they  will  be  pre- 
pared to  entertain  it  in  a  friendly  spirit,  and  with  the 
sincere  desire  that  its  adoption  may  lead  to  a  renewal 
of  the  good  understanding  formerly  existing,  and  as 
they  hope,  hereafter  to  exist,  between  Great  Britain 
and  the  United  States. 

"  I  am,  &c., 

"  STANLEY."  "^ 

January  12th,  1867,  Mr.  Seward  wrote  to  Mr. 
Adams  that  the  United  States  would  not  object  to 
arbitration  if  the  British  Government  desired  it,  but  it 
declined  arbitration  with  the  limitations  that  Lord 
Stanley  imposed.^^ 

At  the  request  of  Professor  James  Lorimer  of  the 
University  of  Edinburgh,  Mr.  John  Westlake — a  prom- 
inent member  of  the  English    Bar  and  the  Foreign 

^A  Historical  Account  of  the  Neutrality  of  Great  Britain 
duritig  the  American  Civil  War  by  Mountague  Bernard.  Lon- 
don :   Longmans,  Green,  Reader  &  Dyer,  1870,  page  483. 

*'  Papers  relating  to  Foreign  Affairs  accompanyiiig  the  Annual 
Message  of  the  Preside7it  to  the  Seco7id  Session,  Fortieth  Congress. 
Washington  :  Government  Printing  Office,  1868,  part  L,  page  45. 


8o  THE    ALABAMA    ARBITRATION. 

Secretary  of  the  National  Association  for  the  Promo- 
tion of  Social  Science — had  reprinted — March  15th. 
1867,  in  Social  Science^  the  bi-monthly  publication  of 
the  association — the  letter  that  Mr,  Thomas  Balch  of 
the  Philadelphia  Bar,  had  addressed  on  March  31st, 
1865,  to  the  New  York  Tribune  and  which  was 
printed  in  that  journal  on   May  13th  following. 

The  editor  of  Social  Science  placed  it  under  the 
title,  "  England  and  the  United  States,"  and  said  : 
"  We  have  been  asked  to  re-publish  the  following  im- 
portant letter,  addressed  to  the  editor  of  the  Nezv 
York  Tribune."  Among  the  members  of  the  associa- 
tion in  1867,  were  the  Right  Hon.  Sir  Stafford  North- 
cote,  Bart.,  M.  P.,  one  of  the  negotiators  of  the  Treaty 
of  Washington  (1871),  Earl  Russell,  Lord  Brougham, 
John  Stuart  Mill,  M.  P.,  John  Laird,  M.  P.  (formerly 
of  Laird  Brothers,  the  builders  of  \h&  Alabama),  and 
many  other  members  of  Parliament,  David  Dudley 
Field  of  the  New  York  Bar,  and  Baron  von  Holtzen- 
dorff  of  Berlin.  Soon  after  the  republication  of  the 
letter  in  Social  Sciefice,  a  number  of  continental  ju- 
rists— Edouard  Laboulaye,  Henry  Moreau,^^Friederich 

^Social  Science,  March  15th,  1867,  pages  201,  202  ;  there  is  a 
copy  in  the  British  Museum. 

"  "Paris  9  Oct.   1874. 

"370  rue  St.   Honor6. 
"  My  DEAR    Balch, — Many  thanks    for    your   kind   souve- 
nir.    I  perused  with  the  greatest  interest  and   satisfaction  your 


THE    ALABAMA    ARBITRATION.  51 

Kapp,  von  Holtzendorff  and  others — approved  Mr, 
Balch's  proposal  to  refer  the  ''Alabama  claims  "  to 
the  decision  of  an  International  Court  of  jurists.^^  Mr. 
George  H.  Yeaman,  then  the  United  States  Min- 
ister at  Copenhagen,  also  favored  the  idea.^^     At  the 

remarkable  pamphlet  on  International  Courts  of  Arbitration,  and 
found  you  have  given  full  evidence  of  your  paternal  right  on  this 
service  which  ended  so  happily  both  for  America  and  England, 
the  quarrels  springing  from  the  Alabama  matter  and  the  San 
Juan  Boundaries.  I  thank  you  also  for  having  mentioned  my 
name  in  such  an  honorable  company,  with  the  publicists  who 
have  illustrated  the  dark  points  of  International  Law. 

"HENRY   MOREAU, 

'  'Avocat  a  la  cour  d'  Appel. ' ' 

This  letter  of  Henry  Moreau  is  written  in  English.  Monsieur 
Moreau  was  a  distinguished  member  of  the  Paris  Bar,  of  the 
Society  de  la  Legislation  Comparee,  and  the  author  of  La  Poli- 
tique Franfaise  en  Amerique,  1861-1864.  (Paris,  1864). 

^"^International  Courts  of  Arbitration.  Edition  of  1899, 
page  15. 

^  Mr.  Yeaman  sent  the  following  letter  to  Mr.  Balch : — 
"Legation  of  the  United  States, 

"Copenhagen,   26  March,   1867. 

"  Dear  Sir  : — I  have  read  with  much  interest  your  letter  of 
the  13  May,  1865,  to  the  Editor  of  the  New  York  Tribune,  and 
now  republished  in  the  '  Social  Science '  for  this  month,  which 
you  have  kindly  sent  me.  In  that  letter  you  propound  what 
seems  to  you  the  best  method  of  amicably  settling  the  pending 
controversies  between  the  United  States  and  Great  Britain. 

' '  Omitting  all  discussion  of  the  propriety  and  feasibility  of  now 


52  THE    ALABAMA    ARBITRATION. 

eleventh  annual  meeting  of  the  Association,  that  was 
held  at  Belfast  in  September,  1867,  one  of  the  subjects 
discussed  was  :  "Is  it  desirable  to  establish  a  general 
system  of  International  Arbitration,  and  if  so  on  what 
principle  should  it  be  organized?"    Mr.  Field  presided 

referring  the  matters  in  dispute  to  arbitration,  the  mode  you  ad- 
vocate, I  only  desire  to  express  my  decided  approbation  of  your 
suggestion  as  to  the  mode  of  selecting  and  organizing  tribunals  of 
arbitration,  in  cases  where  the  powers  interested  agree  to  a  refer- 
ence. That  the  tribunal  or  arbiter  shall  not  be  the  executive  head 
of  a  government,  but  a  small  number  of  jurists  of  acknowledged 
character  and  learning. 

' '  I  have  never  believed  in  the  durability  and  efficacy  of  any 
of  the  schemes  for  an  international  tribunal  to  settle  all  disputes 
and  prevent  all  wars.  Whether  it  is  well  or  unfortunate,  it  is 
quite  clear  that  in  the  present  stage  of  the  development  and 
practice  of  political  science,  there  can  be  no  reference  but  by 
agreement,  and  the  agreement  must  be  had  in  each  case  as  it 
arises,  and  the  tribunal  or  arbiter  must  be  selected  for  the  occa- 
sion. 

' '  While  this  remains  the  only  practicable  mode  of  securing  the 
benefits  of  a  reference,  every  sound  reason  is  against  the  ordinary 
plan  of  selecting  a  crowned,  or  other  executive  head  of  a  govern- 
ment, and  sustains  the  plan  of  selecting  a  tribunal  composed  of 
those  who  make  the  understanding  and  the  elucidation  of  law,  in 
its  largest  sense  as  the  science  of  justice,  the  study  of  their  lives. 

"  It  is  no  disparagement  of  those  generally  found  at  the  heads 
of  the  executive  governments  of  the  civilized  world,  to  say  that 
they  are  not  generally  those  best  acquainted  with  jurisprudence  ; 
and  that  every  government,  of  whatever  form,  nearly  always  con- 
tains within  its  limits,  a  number  of  jurists  more  learned  in  their 
profession  and  better  qualified  by  their  habits  of  thought  to  con- 
duct such  an  investigation  than  the  executive  head  of  that  govern- 


THE    ALABAMA    ARBITRATION.  83 

over  the  debate  of  this  question.  Lord  Hobart  and 
David  Ross  of  the  British  Bar  read  papers ;  a  number 
of  members  joined  in  a  general  discussion  of  the  sub- 
ject ;  and  Mr.  Field  at  the  close  summed  up  the  de- 
bate.   In  speaking  of  the  possibilities  of  finding  arbiters 

ment.  Neither  is  it  any  impeachment  of  their  probity  or  their 
desire  to  render  a  just  judgment  to  say  that  executive  rulers,  are, 
from  their  position,  more  apt  to  be  influenced  by  motives  of 
policy,  or  of  personal  or  political  partiality,  than  a  court  of  inter- 
national jurists  would  be ;  while  some,  who  might  render  real 
service  in  that  capacity,  would  occasionally  decline  to  act  on  ac- 
count of  the  delicate  embarrassment  in  which  any  action  might 
involve  them.  And  those  who  consent  to  act,  no  doubt  often  re- 
fer the  case,  for  investigation  and  advice,  to  a  subject  of  their  own 
selection,  one  unknown  to  the  parties,  at  least  not  agreed  upon 
by  them  ;  and  though  the  award  may  come  formally  as  from  the 
crown,  it  is  really  the  opinion  of  some  person  not  embraced  in  the 
reference  and  who  neither  incurs  blame  nor  makes  reputation  by 
his  judgment.  Thus  the  parties  are  put  in  the  position  of  abiding 
by  the  award  of  one  selected  for  them  by  another  ;  they  know  not 
what  influenced  the  selection,  and  however  learned  the  advisor  may 
be,  the  parties  have  not  had  the  advantage  of  a  consultation  and 
comparison  of  views.  These  objections  manifestly  do  not  apply 
to  the  case  of  an  umpire  selected  in  advance  by  referees  in  view 
of  the  possibility  of  their  own  disagreement. 

' '  Thus  the  advantages  of  learning,  and  of  freedom  from  all 
improper  influences  are  on  the  side  of  a  select  committee  or  board 
of  jurists.  From  their  breasts  selfishness,  jealousy,  partiality 
and  refined  policy,  as  applied  to  the  matter  before  them,  are 
all  excluded.  They  work  out  their  conclusions  in  the  light  of 
usage,  precedent,  right  reason,  natural  right,  science.  What  of 
ambition  they  may  have  is  constrained  to  be  innocent  and  lauda- 
ble, for  it  can  only  be  gratified  by  building  a  reputation,  which,  in 


84  THE    ALABAMA    ARBITRATION. 

Other  than  crowned  heads  or  executives  of  Republics, 
he  referred  to  the  proposals  of  Mr.  Balch  and  Mr. 
Lieber.  Mr.  Field  said  :  "  I  think  we  may  say  that  it 
is  agreed  on  all  hands  that  it  is  desirable  there  should 
be  a  system  of  arbitration,  and  if  a  system  of  arbitra- 
tion, a  general  one,  by  which,  I  suppose,  is  meant  that 

their  vocation,  can  have  no  other  foundation  than  justice  and 
truth.  The  judgments  of  such  tribunals  would  be  sought  for  and 
recognized  as  the  highest  evidence  of  what  the  law  is  ;  and  they 
would  develop,  polish,  and  make  symmetrical  the  law  of  nations, 
as  the  judgments  of  Hardwick,  Eldon,  and  Mansfield  have  done 
the  law  of  England,  and  as  the  judgments  of  Kent,  Marshall  and 
Story  have  done  the  law  in  the  United  States. 

' '  I  have  been  much  impressed  with  your  observation  that  this 
'  would  be  no  trifling  event  in  the  march  of  Democratic  Freedom.' 
It  would  accelerate  and  illustrate  the  progress  of  democratic  free- 
dom, a  freedom  that  is  far  more  secure  against  license  than  any 
scheme  of  personal  government  or  irresponsible  power  can  be, 
because  it  would  be  a  tribute  to  the  domination  of  mind,  intelli- 
gence, reason,  science,  over  accident,  force  and  tradition  in  the 
affairs  of  men.  The  struggle  for  that  domination  is  the  begin- 
ning, and  its  full  consummation  is  the  highest  and  fairest  fruit  of 
democracy.  If  that  element  in  government  has  been  the  most 
rare  and  the  least  successful,  it  is  because  that  while  appearing  to 
be  the  most  simple,  it  is  really  the  most  difficult,  and  it  is  the 
most  difficult  because  the  conditions  of  its  success  are  the  highest 
and  the  least  frequent  among  men. 

"Very  respectfully, 

' '  Your  obedient  servant 

"GEO.   H.  YEAMAN. 

' '  Thomas  Balch,  Esq. , 
"  Paris." 


THE    ALABAMA    ARBITRATION.  85 

it  should  be  agreed  among  civilized  nations  that  war 
should  not  take  place  between  them  until  they  had 
offered  to  submit  the  matter  in  disagreement  to  an 
impartial  arbiter.  Then  it  is  said,  however,  how  is  an 
impartial  arbiter  to  be  found?  I  will  say  that  it  seems 
to  me  we  are  not  confined  in  that  to  princes  or  gov- 
ernments. In  this  very  matter  of  the  Alabama,  it  has 
been  suggested  that,  if  arbitration  is  agreed  upon,  the 
question  should  be  referred  to  the  arbitration  of  the 
most  eminent  jurists  in  the  German  universities,^  as 
persons  having  the  requisite  knowledge,  as  having  by 
their  position  no  cause  for  partiality,  and  as  having 
characters  to  maintain,  which  will  be  guarantee  for  the 
efforts  they  will  make  to  give  a  just  decision.  It  has 
also  been  suggested  that  in  the  dispute  between  Eng- 
land and  America  relative  to  the  Alabama,  the  Gov- 
ernment of  Switzerland  should  be  arbiter.^^  I  am 
confident  impartial  persons  can  be  found  somewhere 
in  the  world  to  decide  between  two  nations."  ^*^ 

The  English  press  gave  the  subject  more  and  more 
attention.    At  the  end  of  January,  1868,  Mr.  Westlake 

"See  page  63. 

^^See  page  48. 

*®For  the  discussion,  including  the  remarks  of  Mr.  Field,  see 
Transactions  of  the  National  Association  for  the  Promotion  of 
Social  Science.  Belfast  Meeting,  1867.  Edited  by  G.  W. 
Hastings,  LL.  D.,  London,  1868,  pages  254-259. 


86  THE    ALABAMA    ARBITRATION. 

wrote  a  long  letter  upon  "the  Alabama  Claims"  to 
the  Editor  of  the  London  Daily  News ;"  it  was  pub- 
lished in  that  paper  on  January  24th,  and  was  as 
follows  : — 

"  The  Alabama  Claims. 

"  To  the  Editor  of  the  Daily  News. 

"Sir — Will  you  allow  me  a  few  words  about  the 
Alabama  Claims  ?  Whether  the  principle  of  arbitra- 
tion should  have  been  admitted  is,  perhaps,  not  quite 
so  clear  as  its  advocates  suppose,  but,  since  our 
Foreign  Secretary  has  admitted  it,  I  apprehend  that 
both  the  honor  and  the  interests  of  the  country  re- 
quire that  such  admission  should  not  be  practically 
withdrawn,  through  a  difference  about  the  form  of  the 
issues,  which  I  believe  might  be  easily  settled,  if 
some  misapprehension  that  still  seems  to  exist  about 
them  were  removed. 

"  In  whatever  form  the  reference  be  made,  the 
points  for  the  arbiter  to  consider,  if  he  is  to  give  a 
just  deliverance,  are  these  : — 

"I.  Is  England  liable  to  the  United  States  in 
damages  for  the  sailing  of  the  Alabama  from  the 
Mersey  ? 

"  2.  Are  those   countries  which  received   the  Ala- 

"The  London  Daily  News,  Friday,  January  24th,  1868,  page 
5,  columns  2  and  3  :  there  is  a  copy  in  the  British  Museum. 


THE    ALABAMA    ARBITRATION.  87 

bama  in    their   ports   liable    to  the  United    States  in 
damages  for  so  doing? 

"  3.  If  the  general  answer  to  the  second  question 
should  be  in  the  negative,  then  does  it  make  any  dif- 
ference in  the  case  of  England  that  the  expedition  of 
the  Alabama  from  Liverpool  was  an  offense  against 
England  on  the  part  of  the  so-called  Confederate 
States?  That  is,  was  it  competent  to  England,  as 
against  the  United  States,  to  condone  that  offense, 
instead  of  avenging  it  by  arresting  the  Alabama? 

"4.  If  any  of  the  above  questions  should  be  an- 
swered in  favor  of  the  claimants,  then  to  assess  the 
damages  payable  by  England,  having  a  special  refer- 
ence to  the  second  question,  and  to  the  facts  as  to  the 
ports  in  which  the  Alabama  was  received. 

"  Now,  it  is  supposed  that,  while  upon  the  second 
question,  the  arbitrator  would  have  to  decide  on  the 
propriety  of  the  Queen's  proclamation,  by  which  the 
fact  of  a  war  existing  in  America  was  recognized ;  and 
it  is  said  to  be  derogatory  that  we  should  submit  the 
policy  of  this  country  to  any  such  decision.  I  will  first 
observe  that  it  is  not  the  propriety  in  policy  of  the 
Queen's  proclamation,  but  its  justifiableness  in  law, 
that  can  even  indirectly  come  in  question ;  and  if  it 
is  derogatory  to  refer  that  point,  then  it  must  also 
be  derogatory  to  refer  the  justifiableness  in  law  of 
those   acts    of    omission    through   which   the    British 


88  THE    ALABAMA    ARBITRATION. 

government  is  charged  with  having  rendered  the 
Alabama  s  escape  from  the  Mersey  possible.  But, 
further,  the  proclamation  can,  upon  the  second  ques- 
tion, in  no  way  come  before  the  arbitrator  at  all,  not- 
withstanding that  his  decision  may  indirectly  show 
what  he  would  have  thought  of  it,  if  it  had  been 
before  him.  For  the  deliverance  must  be,  whether 
England  is  liable  in  damages  for  receiving  the  Ala- 
bama in  British  ports ;  and  one  must  be  ignorant  of 
the  first  elements  of  law  to  suppose  that  if  England 
would  have  been  so  liable  independently  of  the  proc- 
lamation, we  can  escape  such  liability  by  means  of 
the  proclamation,  a  purely  British  act  to  which  the 
United  States  were  not  a  party.  The  law  officer, 
secretary  of  state,  or  minister,  who  may  be  charged 
with  preparing  the  British  case  to  be  laid  before  the 
arbitrator,  will  have  to  show  a  similar  state  of  facts  to 
that  which,  on  this  side  of  the  Atlantic,  has  always 
been  deemed  to  justify  the  proclamation.  I  say  a 
similar,  not  the  same,  because  he  will  have  this  ad- 
vantage— that  he  need  not  confine  himself  to  the 
facts  which  existed  at  the  date  when  this  proclamation 
was  issued  ;  but  may  include  those  which  existed  at 
the  time  when  the  Alabama  was  received  in  British 
ports.  It  will  also  be  open  to  him  to  use  all  those 
arguments  which,  with  regard  to  the  proclamation, 
have  been  drawn  from  the  blockade.     He  may  show 


THE    ALABAMA    ARBITRATION.  89 

that  the  United  States  had  captured  neutral  vessels 
beyond  a  marine  league  from  shore,  or  within  that 
distance  from  the  coast  of  which  they  were  not  in 
possession,  and  had  also  announced  that  they  were 
prepared  to  make  such  captures,  and  had  by  such 
announcement  interfered  with  neutral  commerce  to  a 
greater  extent  than  even  by  the  captures  themselves ; 
and  he  may  argue  that,  as  such  captures  are  per- 
mitted only  by  the  laws  of  war,  the  United  States  are 
estopped  from  denying  that  the  Alabama  was  a  law- 
ful belligerent.  In  short,  the  business  of  our  repre- 
sentative, so  far  as  concerns  the  second  question,  will 
be  to  show  that  the  Alabama  bore  a  lawful  belligerent 
commission,  justifying  her  reception  in  neutral  ports  ; 
or,  if  not,  that  at  least  the  United  States  are  estopped 
from  saying  that  she  did  not.  And  if  he  refers  for 
this  purpose  to  the  Queen's  proclamation,  not  only 
will  he  absurdly  pretend  to  bind  the  claimants  by  that 
to  which  they  were  not  a  party,  but  he  will  abandon 
the  impregnable  ground  on  which  a  proclamation 
itself  has  always  been  justified — namely,  that  it  treated 
the  Confederates  as  the  belligerents  which  they  were, 
but  neither  did  nor  could  make  them  belligerents.  As 
to  any  chance  which  there  may  be  of  the  proclamation 
being  drawn  into  question  on  the  first  head,  as  having 
incited  to  the  building  and  sending  out  of  the  Alabama, 
I  think  we  may  safely  leave  that   pretention   to  the 


90  THE    ALABAMA    ARBITRATION. 

summary  justice  which  any  honest  arbitrator, — and  if 
we  do  not  believe  him  honest,  we  shall  not  accept 
him — will  do  upon  it  if  it  should  be  put  forward.  It 
would  be  beneath  us  to  stipulate  the  exclusion  of  such 
a  plea;  besides  that,  if  any  one  really  believes  there 
is  a  point  in  it,  we  could  no  more  claim  to  exclude  it 
than  any  other  point. 

"I  have  already  alluded  to  the  question  whether  the 
principle  of  arbitration  should  have  been  admitted  in 
this  case  :  the  considerations  which  arise  on  that  point 
can  be  appreciated  now  the  issues  have  been  placed 
distinctly  before  the  reader.  International  arbitration 
is  of  great  value  in  disputes  of  fact,  as  in  boundary 
cases ;  sometimes  also  in  those  cases  from  which  un- 
fortunately far  the  larger  number  of  wars  arise,  that 
do  not  turn  on  international  law  at  all ;  but  on  what 
some  nation  deems  to  be  necessary  for  its  honor  or 
security.  It  is  of  use,  again,  where  claims,  of  which 
the  principle  is  admitted,  are  extravagant  in  amount, 
or  are  pushed  with  unnecessary  harshness.  But  it  is 
a  long  step  to  take  from  those  cases,  to  admit  that 
arbitration  is  the  true  remedy  in  disputes  as  to  inter- 
national law.  The  law  declared  on  such  a  reference 
would  be  open  to  all  the  objections  which  lie  to  judge- 
made  law  in  municipal  jurisprudence,  with  the  ad- 
ditional one  of  the  difficulty  in  finding  a  good  arbitra- 
tor.    For  instance,  if  the  dispute  relates  to  maritime 


THE    ALABAMA    ARBITRATION.  9 1 

law  an  inland  power  will  not  fully  appreciate  its  prac- 
tical bearings,  and  a  maritime  power  will  probably, 
without  actual  dishonesty,  be  influenced  by  its  own 
interests,  which  can  hardly  fail  to  be  affected  by  the 
question  one  way  or  the  other.  It  were  much  to  be 
desired  that  disputes  about  international  law  should 
be  referred  to  congresses  of  the  great  powers,  who 
might  decide  them  in  a  legislative  rather  than  a  judi- 
cial manner. 

"The  first  question  in  the  present  case — that  of  the 
liability  of  a  nation  to  pay  damages  for  an  escape  like 
the  Alabama  s  from  the  Mersey — is  a  difficult  and  not 
unimportant  legal  one.  Supposing  the  arbitrator  to 
be  of  opinion  that  the  designs  of  the  British  govern- 
ment were  perfectly  fair,  and  its  conduct  on  the  whole 
successful  in  preventing  the  escape  of  cruisers,  so  that 
no  casus  belli  existed,  he  will  then  have  to  say  whether 
the  obligation  of  a  nation  with  regard  to  the  neutrality 
of  its  soil  amounts  to  an  absolute  insurance  of  such 
neutrality,  so  that  damages  may  be  claimed  for  a 
breach,  even  though  the  case  be  such  as  would  not 
justify  a  war,  if  damages  were  offered.  If  this  question 
were  now  raised  for  the  first  time  it  would  be  much 
easier  to  answer  it  in  the  affirmative  than  it  is  under 
the  actual  circumstances — that  the  United  States  them- 
selves repudiated  such  an  obligation  when  claimed 
against  them  by   Portugal,  in   respect  of  the  captures 


92  THE    ALABAMA    ARBITRATION. 

made  during  the  South  American  civil  war,  by  cruisers 
which  sailed  from  their  ports.  For  the  point  to  be  re- 
ferred to  an  arbitrator  instead  of  being  declared  or  en- 
acted in  Congress,  is  the  same  thing  as  if  a  colony, 
instead  of  deciding  in  legislative  assembly  whether 
Lord  Campbell's  Act,  whereby  the  liabilities  of  rail- 
way companies  were  so  greatly  increased,  should  be 
adopted,  were,  after  the  occurrence  of  numerous  ac- 
cidents, suddenly  to  refer  the  question  of  its  adoption 
to  the  decision  of  an  arbitrator  on  the  next  accident. 
The  third  question  is  also  a  legal  one  of  novelty  and 
difficulty,  and  may  turn  out  to  be  the  most  important 
in  the  reference.  But  in  the  present  case  it  appears 
to  me  to  be  now  too  late  to  put  forward  these  con- 
siderations, though  note  may  be  taken  of  them  for 
the  future.  A  reference  of  the  Alabama  claims  was 
refused  by  Earl  Russell,  on  grounds  which  can 
hardly  be  deemed  satisfactory,  and  has  since  been 
conceded  in  substance  by  Lord  Stanley.  It  is  not 
likely  that  the  reference  of  legal  questions  to  an  arbi- 
trator, wrong  as  it  may  be  in  principle,  will  in  the 
actual  instance  lead  to  great  mischief.  The  issues 
are  not  really  difficult  to  settle,  and  involve  nothing 
derogatory  to  England.  The  proclamation  about 
which  so  much  has  been  said  is  not  direcdy  involved, 
while  an  indirect  judgment  on  it  is  so  necessarily  in- 
volved in  the  question  of  the  Alabama  s  commission, 


THE    ALABAMA    ARBITRATION.  93 

as  justifying  her  reception  in  British  ports,  that  it  can- 
not be  evaded  if  the  claims  are  to  be  referred  at  all. 
The  only  practical  questions,  then,  which  appear  to 
me  to  remain,  are  those  of  settling  the  form  of  the 
reference  and  choosing  the  arbitrator;  and  to  these  I 
earnestly  desire  that  both  governments  should  address 
themselves  with  all  candor  and  sincerity.  Let  the 
issues  be  clear,  precise,  and  appropriate,  so  the  deliv- 
erance of  them  will  most  tend  to  take  out  the  sting 
from  the  feelings  of  both  sides,  and  to  leave  interna- 
tional law,  and  the  habits  of  conducting  International 
relations,  In  a  better  plight  and  condition  than  that  in 
which  they  were  found. 

"I  am,  &c., 

-JOHN  WESTLAKE.^« 
"  Lincoln's-Inn,  Jan.  23." 

^John  Westlake,  Q.  C,  since  1888  Professor  of  International 
Law  in  Cambridge  University,  published  in  1858  A  Treatise  on 
Private  International  Law,  or  the  Conflict  of  Laws,  which  he 
rewrote  entirely  in  1880;  in  1894  he  published  Chapters  on  the 
Principles  of  International  Law.  He  was  the  Foreign  Secretary 
of  the  National  Association  for  the  Promotion  of  Social  Science, 
and  President  of  its  Jurisprudence  Department  at  the  Birmingham 
meeting  in  1884.  He  is  a  member,  and  was  President  at  the 
Cambridge  meeting  in  1895,  of  V  Institut  de  Droit  International. 


CHAPTER  V. 

On  the  6th  of  March,  1868,  there  was  a  debate 
in  the  House  of  Commons  on  the  Alabama  claims. 
Mr.  Shaw-Lefevre  (Liberal),  who  during  the  Civil 
War  sympathized  with  the  Union  cause,  moved 
an  address  calling  for  the  publication  of  papers 
relating  to  the  Alabama  claims.  The  Foreign  Sec- 
retary, Lord  Stanley,  Mr.  W.  E.  Forster,  Mr. 
Mill  and  most  of  the  members  who  spoke,  fa- 
vored, at  the  same  time  that  they  insisted  on  the 
safeguarding  of  the  rights  of  England,  the  adop- 
tion of  a  conciliatory  policy  towards  the  United 
States.^^ 

In  June,  1868,  President  Johnson  appointed  Mr. 
Reverdy  Johnson,  of  Maryland,  to  succeed  Mr.  Adams 
who  had  resigned  in  December,  1867,  but  had  con- 
tinued until  May,  1868,  at  the  post  he  had  filled 
with  such  marked  ability  and  success,  and  main- 
tained during  the  course  of  difficult  negotiations 
the  high  diplomatic  traditions  left  him  by  an  hon- 
ored   sire    and    grandsire.     Mr.    Johnson    arrived    in 

*'The  London  Times,  March  7th,  1868,  page  6. 

(94) 


THE    ALABAMA    ARBITRATION.  95 

England  with  instructions  to  seek  for  an  amicable 
arrangement  of  several  vexatious  questions,  such 
as  naturalization  and  the  San  Juan  water  boundary, 
then  existinof  between  the  two  countries.  He  ne- 
gotiated  for  many  months  with  Lord  Stanley  and 
his  successor  in  the  Foreign  Office,  Lord  Claren- 
don. At  length,  on  January  14th,  1869,  the  John- 
son-Clarendon convention  providing  for  the  settlement 
of  the  Alabama  claims  was  signed.  It  provided  that  a 
commission  of  four  members  should  sit  at  Washington, 
that  each  power  should  name  two  commissioners,  that 
all  the  claims  of  subjects  of  either  country  against  the 
other  nation  should  be  submitted  to  the  four  commis- 
sioners ;  and  that  if  in  any  case  the  commissioners 
failed  to  come  to  an  agreement,  they  should  choose 
an  umpire,  but  if  they  did  not  agree  in  their  selection, 
then  each  side  should  name  an  umpire,  and  then  from 
these  two  persons  an  umpire  should  be  chosen  for 
each  particular  case  in  which  the  commissioners  failed 
to  agree. 

When  the  convention  came  up  for  ratification  in  the 
United  States,  it  met  with  strong  opposition.  Charles 
Sumner,  Senator  from  Massachusetts,  the  Chairman 
of  the  Committee  on  Foreign  Affairs,  delivered,  in  ex- 
ecutive session,  on  April  13th,  1869,  a  strong  speech 
against  ratifying  the  convention.  Senator  Sumner 
first  of  all  said,  that  the  Committee  would  not  hesitate 


g6  THE    ALABAMA    ARBITRATION. 

to  advise  the  Senate  to  reject  the  treaty  and  then  he 
went  on  to  say  : — ^ 

"  A  treaty  which,  instead  of  removing  an  existing 
grievance,  leaves  it  for  heart-burning  and  rancor,  can- 
not be  considered  a  settlement  of  pending  questions 
between  two  nations.  It  may  seem  to  settle  them,  but 
does  not.  It  is  nothingr  but  a  snare.  And  such  is 
the  character  of  the  treaty  now  before  us.  The  mas- 
sive grievance  under  which  our  country  suffered  for 
years  is  left  untouched  ;  the  painful  sense  of  wrong 
planted  in  the  national  heart  is  allowed  to  remain. 
For  all  this  there  is  not  one  word  of  regret  or  even  of 
recognition  ;  nor  is  there  any  semblance  of  compensa- 
tion. It  cannot  be  for  the  interest  of  either  party 
that  such  a  treaty  should  be  ratified.  It  cannot  pro- 
mote the  interest  of  the  United  States,  for  we  natur- 
ally seek  justice  as  the  foundation  of  a  good  under- 
standing with  Great  Britain  ;  nor  can  it  promote  the 
interest  of  Great  Britain,  which  must  also  seek  a  real 
settlement  of  all  pending  questions.  Surely  I  do  not 
err  when  I  say  that  a  wise  statesmanship,  whether  on 

*"  Appendix  to  the  Congressional  Globe  :  Containing  Speeches, 
Important  State  Papers  and  the  Laws  of  the  First  Session,  Forty- 
first  Congj'ess.  City  of  Washington  :  Office  of  the  Congressional 
Globe,  1869,  pages  21-26,  passim. 

Speech  of  Hon.  Charles  Sumner  on  the  fohnso7i- Clarendon 
Treaty  for  the  Settlement  of  Claims.  ,  Delivered  in  the  U.  S. 
Senate.     Boston,    1870. 


THE    ALABAMA    ARBITRATION.  97 

our  side  or  on  the  other  side,  must  apply  itself  to  find 
the  real  root  of  evil,  and  then,  with  courage  tempered 
by  candor  and  moderation,  see  that  it  is  extirpated. 
This  is  for  the  interest  of  both  parties,  and  anything 
short  of  it  is  a  failure, 

"If  we  look  at  the  negotiation,  which  immediately 
preceded  the  treaty,  we  find  little  to  commend.  You 
have  it  on  your  table.  I  think  I  am  not  mistaken 
when  I  say,  that  it  shows  a  haste  which  finds  few  pre- 
cedents in  diplomacy,  but  which  is  explained  by  the 
anxiety  to  reach  a  conclusion  before  the  advent  of  a 
new  Administration,  Mr.  Seward  and  Mr,  Reverdy 
Johnson  both  unite  in  this  unprecedented  activity, 
using  the  Atlantic  cable  freely,  I  should  not  object  to 
haste  or  to  the  freest  use  of  the  cable,  if  the  result 
were  such  as  could  be  approved;  but,  considering  the 
character  of  the  transaction,  and  how  completely  the 
treaty  conceals  the  main  cause  of  offence,  it  seems  as 
if  the  honorable  negotiators  were  engaged  in  huddling 
something  out  of  sight. 

"The  treaty  has  for  its  model  the  Claims  Conven- 
tion of  1853.  To  take  such  a  Convention  as  a  model 
was  a  strange  mistake.  This  Convention  was  for  the 
settlement  of  outstanding  claims  of  American  citizens 
on  Great  Britain,  and  of  British  subjects  on  the 
United   States,  which  had  arisen  since  the  treaty  of 


98  THE    ALABAMA    ARBITRATION. 

Ghent  in  181 5.  It  concerned  individuals  onl)'  and 
not  the  nation.  It  was  not  in  any  respect  political ; 
nor  was  it  to  remove  any  sense  of  national  wrong. 
To  take  such  a  Convention  as  the  model  for  a  treaty, 
which  was  to  determine  a  national  grievance  of  tran- 
scendent importance  in  the  relations  of  two  countries, 
marked  on  the  threshold  an  insensibility  to  the  true 
nature  of  the  difference  to  be  settled.  At  once  it 
belittled  the  work  to  be  done, 

"An  inspection  of  the  treaty  shows  how  from  be- 
ginning to  end  it  is  merely  for  the  settlement  of  indi- 
vidual claims  on  both  sides,  putting  both  batches  on 
an  equality — so  that  the  sufferers  by  the  misconduct  of 
England  may  be  counterbalanced  by  British  blockade- 
runners.  It  opens  with  a  preamble,  which,  instead  of 
announcing  the  unprecedented  question  between  the 
two  countries,  simply  refers  to  individual  claims  which 
have  arisen  since  1853 — which  was  the  last  time  of 
settlement — some  of  which  are  still  pending  and  re- 
main unsettled.  Who  would  believe  that,  under  these 
words  of  common-place,  was  concealed  the  unsettled 
difference  which  has  already  so  deeply  stirred  the 
American  people,  and  is  destined  until  finally  ad- 
justed to  occupy  the  attention  of  the  civilized  world  ? 

•^  ^i  ^  tjt  i^  S;^ 

"The  provisions  of  the  treaty  are  for  the  trial  of 
these   cases.     A   commission   is  constituted,  which  is 


THE    ALABAMA    ARBITRATION.  99 

empowered  to  choose  an  arbitrator ;  but,  in  the  event 
of  a  failure  to  agree,  the  arbitrator  shall  be  deter- 
mined 'by  lot'  out  of  two  persons  named  by  each 
side.  Even  if  this  aleatory  proceeding  were  a  proper 
device  in  the  umpirage  of  private  claims,  it  is  strangely 
inconsistent  with  the  solemnity  which  belongs  to  the 
present  question,*"^  The  moral  sense  is  disturbed  by 
such  a  process  at  any  stage  of  the  trial ;  nor  is  it  sat- 
isfied by  the  subsequent  provision  for  the  selection  of 
a  sovereign  or  head  of  a  friendly  State  as  arbitrator. 

"  The  treaty  not  merely  makes  no  provision  for  the 
determination  of  the  great  question,  but  it  seems  to 
provide  expressly  that  it  shall  never  hereafter  be  pre- 
sented." 

Then  Summer  went  on  to  state  the  case  against 
England.     He  showed  how  the  Civil  War  began,  how 

®^  Sumner  wrote  on  January  13th,  1867,  to  George  Bemis  : — 
' '  There  are  difficulties  in  the  way  of  finding  an  arbitrator. 
What  power  would  dare  to  decide  against  England  ?  What 
power  would  dare  to  decide  against  the  United  States  ?  Whom 
will  England  accept  that  we  will  accept?  On  another  occasion 
Lord  Lyons  told  me  that  England  would  accept  Switzerland,  and 
I  drew  up  and  reported  a  resolution  authorizing  the  submission. 
But  the  war  soon  diverted  attention,  and  that  resolution  was 
never  acted  on.  It  was  on  the  San  Juan  difficulty  ;  but  there  Eng- 
land was  anxious  simply  for  a  settlement.  What  say  you  to  a 
commission  of  wise  men  ?  Who  shall  they  be  ?  Will  the  country 
be  contented  with  such  a  submission  ?  Seward  thinks  not. ' ' 
Memoir  and  Letters  of  Charles  Sumner,  by  Edward  L.  Pierce. 
Boston,  1893.     Volume  IV.,  page  312. 


lOO  THE   ALABAMA    ARBITRATION, 

England  in  hot  haste  recognized  the  Confederate 
States  as  belhgerents,  and  how  the  Alabama  was  built 
and  put  to  sea.     He  continued  : — 

"The  case  is  not  yet  complete.  The  Alabama, 
whose  building  was  in  defiance  of  law,  international 
and  municipal,  whose  escape  was  'a  scandal  and  re- 
proach,'^" and  whose  enlistment  of  her  crew  was  a  fit 
sequel  to  the  rest,  after  being  supplied  with  an  arma- 
ment and  with  a  rebel  commander,  entered  upon  her 
career  of  piracy.  Mark  now  a  new  stage  of  com- 
plicity. Constantly  the  pirate  ship  was  within  reach 
of  British  cruisers,  and  from  time  to  time  within  the 
shelter  of  British  ports.  For  six  days  unmolested 
she  enjoyed  the  pleasant  hospitality  of  Kingston,  in 
Jamaica,  obtaining  freely  the  coal  and  other  supplies 
so  necessary  to  her  vocation.  But  no  British  cruiser, 
no  British  magistrate  ever  arrested  the  offending  ship, 

*Mn  a  letter  to  Lord  Lyons,  dated  March  27th,  1863,  Earl 
Russell,  in  relating  a  conversation  he  had  with  Mr.  Adams,  wrote 
among  other  things  : — 

' '  I  said  that  the  Cabinet  were  of  opinion  that  the  law  [the 
English  municipal  law]  was  sufficient  ;  but  that  legal  evidence 
could  not  always  be  procured.  That  the  British  Government 
had  done  everything  in  its  power  to  execute  the  law ;  but  I 
admitted  that  the  cases  of  the  Alabama  and  Oreto  were  a  scandal, 
and,  in  some  degree,  a  reproach  to  our  laws." 

The  Official  Correspo?ide7ice  on  the  Claims  of  the  United  States 
in  respect  to  the  'Alabama.^  (Published  by  Earl  Russell).  Lon- 
don :   Longmans,  Green  &  Co.,  1867,  page  67. 


THE    ALABAMA    ARBITRATION,  lOI 

whose  voyage  was  a  continuing  'scandal and  reproach' 
to  the  British  Government. 

"  The  excuse  for  this  strange  license  is  a  curious 
technicality,  as  if  a  technicality  could  avail  in  this  case 
at  any  stage.  Borrowing  a  phrase  from  that  master 
of  Admiralty  jurisprudence,  Sir  William  Scott,  it  is 
said  that  the  ship  'deposited'  her  original  sin  at  the 
conclusion  of  her  voyage,  so  that  afterwards  she  was 
blameless.  But  the  Alabama  never  concluded  her 
voyage  until  she  sank  under  the  guns  of  the  Kear- 
sarge,  because  she  never  had  a  port  of  her  own.  She 
was  no  better  than  the  Flying  Dutchman  and  so  long 
as  she  sailed  was  liable  for  that  original  sin,  which  had 
impregnated  every  plank  with  an  indelible  dye.  No 
British  cruiser  could  allow  her  to  proceed,  no  British 
port  could  give  her  shelter,  without  renewing  the  com- 
plicity of  England. 

"The  Alabama  case  begins  with  a  fatal  concession, 
by  which  the  rebels  were  enabled  to  build  ships  in 
England,  and  then  to  sail  them,  without  being  liable 
as  pirates  ;  it  next  shows  itself  in  the  building  of  the 
ship,  in  the  armament,  and  in  the  escape,  with  so  much 
of  negligence  on  the  part  of  the  British  Government 
as  to  constitute  sufferance,  if  not  connivance;  and  then, 
again,  the  case  reappears  in  the  welcome  and  hospi- 
tality accorded  by  British  cruisers,  and  by  the  magis- 
trates  of  British  ports,  to  the  pirate  ship,  when  her 


I02  THE    ALABAMA    ARBITRATION. 

evasion  from  British  jurisdiction  was  well  known. 
Thus,  at  three  different  stages,  the  British  Govern- 
ment is  compromised :  first,  in  the  concession  of  ocean 
belligerency,  on  which  all  depended ;  secondly,  in  the 
negligence  which  allowed  the  evasion  of  the  ship,  in 
order  to  enter  upon  the  hostile  expedition  for  which 
she  was  built,  manned,  armed,  and  equipped;  and 
thirdly,  in  the  open  complicity,  which,  after  this  evasion, 
gave  her  welcome  hospitality  and  supplies  in  British 
ports.  Thus  her  depredations  and  burnings,  making 
the  ocean  blaze,  all  proceeded  from  England,  which 
by  three  different  acts  lighted  the  torch.  To  England 
must  be  traced,  also,  all  the  wide-spread  consequences 
which  ensued. 

"I  take  the  case  of  the  Alabama,  because  it  is  the 
best  known,  and  because  the  building,  equipment,  and 
escape  of  this  ship  were  under  circumstances  most  ob- 
noxious to  judgment  ;  but  it  will  not  be  forgotten,  that 
there  were  consort  ships,  built  under  the  shelter  of 
that  fatal  proclamation,  issued  in  such  an  eclipse  of 
just  principles,  and,  like  the  ships  it  unloosed,  '  rigged 
with  curses  dark.'  One  after  the  other,  ships  were 
built  ;  one  after  the  other,  they  escaped  on  their 
errand;  and,  one  after  the  other,  they  enjoyed  the 
immunities  of  British  ports.  Audacity  reached  its 
height  when  iron-clad  rams  were  built,  and  the  per- 
versity of  the  British  Government  became  still  more 


THE    ALABAMA    ARBITRATION.  IO3 

conspicuous  by  its  long  refusal  to  arrest  these  de- 
structive engines  of  war,  destined  to  be  employed 
against  the  United  States.  This  protracted  hesitation, 
where  the  consequences  were  so  menacing,  is  a  part 
of  the  case. 

'*  It  is  plain  that  the  ships  were  built  under  the  safe- 
guard of  this  ill-omened  proclamation  ;  which  stole 
forth  from  the  British  shores,  and  afterward  enjoyed 
the  immunities  of  British  ports,  were  not  only  British 
in  origin,  but  British  in  equipment,  British  in  arma- 
ment, and  British  in  crews.  They  were  British  in 
every  respect,  except  in  their  commanders,  who  were 
rebel,  and  one  of  these,  as  his  ship  was  sinking,  owed 
his  safety  to  a  British  yacht,  symbolizing  the  omni- 
present support  of  England.  British  sympathies  were 
active  in  their  behalf.  The  cheers  of  a  British  pas- 
senger ship  crossing  the  path  of  the  Alabama  en- 
couraged the  work  of  piracy,  and  the  cheers  of  the 
House  of  Commons  encouraged  the  builder  of  the 
Alabama,  while  he  defended  what  he  had  done  and 
exclaimed,  in  taunt  to  him  who  is  now  an  illustrious 
member  of  the  British  cabinet,  John  Bright,  that  he 
'  would  rather  be  handed  down  to  posterity  as  the 
builder  of  a  dozen  Alabamas,  than  be  the  author  of 
the  speeches  of  that  gentleman  '  crying  up '  the  insti- 
tutions of  the  United  States,  which  the  builder  of  the 
Alabama,  rising  with  his  theme,  denounced  '  as  of  no 


I04  THE    ALABAMA    ARBITRATION. 

value  whatever  and  as  reducing  the  very  name  of 
liberty  to  an  utter  absurdity,'  while  the  cheers  of  the 
House  of  Commons  echoed  back  his  words.  Thus 
from  beginning  to  end,  from  the  fatal  proclamation  to 
the  rejoicing  of  the  accidental  ship,  and  the  rejoicing 
of  the  House  of  Commons,  was  this  hostile  expedi- 
tion protected  and  encouraged  by  England.  The 
same  spirit,  which  dictated  the  swift  concession  of 
belligerency,  with  all  its  deadly  incidents,  ruled  the 
hour,  entering  into  and  possessing  every  pirate 
ship." 

Then  Senator  Sumner  spoke  of  the  reparation  due 
from  England  to  the  United  States.  He  estimated  the 
losses  that  the  Confederate  cruisers  inflicted  on  the 
tonnage  of  the  United  States  at  about  ^15,000,000. 
Next  he  went  on  to  describe  the  "national  claims" 
or  "  indirect  claims  ;"  and  said  : — 

"I  refer,  of  course,  to  the  national  losses  caused  by 
the  prolongation  of  the  war  and  traceable  directly  to 
England.  Pardon  me  if  I  confess  the  regret  with 
which  I  touch  this  prodigious  item  ;  for  I  know  well 
the  depth  of  feeling  which  it  is  calculated  to  stir.  But 
I  cannot  hesitate.  It  belongs  to  the  case.  No  candid 
person,  who  studies  this  eventful  period,  can  doubt 
that  the  Rebellion  was  originally  encouraged  by  hope 
of  support  from  England  ;  that  it  was  strengthened  at 
once   by  the  concession   of  belligerent   rights   on  the 


THE    ALABAMA    ARBITRATION.  IO5 

ocean  ;  that  it  was  fed  to  the  end  by  British  supplies  ; 
that  it  was  encouraged  by  every  well-stored  British 
ship  that  was  able  to  defy  our  blockade  ;  that  it  was 
quickened  into  renewed  life  with  every  report  from  the 
British  pirates,  flaming  anew  with  every  burning  ship ; 
nor  can  it  be  doubted  that  without  British  interven- 
tion the  Rebellion  would  have  soon  succumbed  under 
the  well-directed  efforts  of  the  National  Government. 
Not  weeks  or  months,  but  years  were  added  in  this 
way  to  our  war,  so  full  of  the  most  costly  sacrifice.  The 
subsidies  which  in  other  times  England  contributed  to 
continental  wars  were  less  effective  than  the  aid  and 
comfort  which  she  contributed  to  the  Rebellion.  It 
cannot  be  said  too  often  that  the  naval  base  of  the 
Rebellion  was  not  in  America,  but  in  England.  The 
blockade-runners  and  the  pirate  ships  were  all  Eng- 
lish. *  *  *  Mr.  Cobden  boldly  said  in  the  House 
of  Commons  that  England  made  war  from  her  shores 
on  the  United  States,  '  with  an  amount  of  damage  to 
that  country  greater  than  in  many  ordinary  wars.' 
According  to  this  testimony,  the  conduct  of  England 
was  war;  but  it  must  not  be  forgotten  that  this  war 
was  carried  on  at  our  sole  costs.  The  United  States 
paid  for  a  war  waged  by  England  upon  the  National 
Unity." 

After    referring   to    "  the    multitudinous   blockade- 
runners"  that  issued  from  English  ports  and  stating 


T06  THE    ALABAMA    ARBITRATION. 

the  rule  of  damages  in  the  case,  Senator  Sumner  sum- 
marized the  case  against  England  thus : — 

"Applying  this  rule  to  the  present  case,  the  way  is 
clear.  Every  British  pirate  was  2i  public  nuisance,  in- 
volving the  British  Government,  which  must  respond 
in  damages,  not  only  to  the  individuals  who  have  suf- 
fered but  also  to  the  National  Government,  acting  as 
paterfamilias  for  the  common  good  of  all  the  people. 

"  Thus  by  an  analogy  of  the  Common  Law,  in  the 
case  of  a  public  nuisance,  also  by  the  strict  rule  of  the 
Roman  Law,  which  enters  so  largely  into  International 
Law,  and  even  by  the  rule  of  the  Common  Law  relat- 
ing to  damages,  all  losses,  whether  individual  or 
national,  are  the  just  subjects  of  claim.  It  is  not  I 
who  say  this ;  it  is  the  law.  The  colossal  sum-total 
may  be  seen,  not  only  in  the  losses  of  individuals,  but 
in  those  national  losses,  caused  by  the  destruction  of 
our  commerce,  the  prolongation  of  the  war,  and  the 
expense  of  the  blockade,  all  of  which  may  be  traced 
directly  to  England ; 

'  illud  ab  uno 
*  Corpore,  et  ex  unapendebat  origine  bellum.' 

Three  times  is  this  liability  fixed  ;  first,  by  the  con- 
cession of  ocean  belligerency,  opening  to  the  rebels 
ship-yards,  foundries,  and  manufactories,  and  giving  to 
them  a  flag  on  the  ocean  ;  secondly,  by  the  organiza- 


TPIE   ALABAMA    ARBITRATION.  IO7 

tion  of  hostile  expeditions,  which,  by  admissions  in 
ParHament,  were  nothing  less  than  piratical  war  on 
the  United  States  with  England  as  the  naval  base  ; 
and,  thirdly,  by  welcome,  hospitality,  and  supplies  ex- 
tended to  these  pirate  ships  in  ports  of  the  British 
empire.  Show  either  of  these  and  the  liability  of 
England  is  complete.  Show  the  three  and  this  Power 
is  bound  by  a  triple  cord."^^ 

*^  Moorfield  Storey,  for  many  years  closely  connected  with  Sen- 
ator Sumner,  says  of  this  speech  : — 

' '  Notwithstanding  its  few  pacific  words  the  speech  seemed 
hardly  calculated  to  promote  a  settlement.  England  had  re- 
luctantly consented  to  arbitrate,  and  now  her  most  conspicuous 
friend  among  American  statesmen  replied  that  her  concession 
was  idle,  and  that  the  claims  of  the  United  States  exceeded  in 
character  and  magnitude  anything  that  her  statesmen  had 
imagined  possible.  In  it  Sumner  took  no  new  position  ;  his 
opinions  had  already  been  stated  fully,  and  in  fact  our  govern- 
ment had  taken  the  same  ground ;  but  the  English  had  not  re- 
alized what  we  meant.  As  Sumner  wrote  to  Lieber  somewhat 
later :  '  I  have  made  no  demand,  not  a  word  of  apology,  not 
a  dollar  !  nor  have  I  menaced,  suggested,  or  thought  of  war. 
*  *  *  My  object  was  simply  to  expose  our  wrongs  as  plainly, 
but  as  gently,  as  possible.  *  *  *  To  my  mind  our  first  duty 
is  to  make  England  see  what  she  has  done  to  us.' 

' '  Sumner  accomplished  this  object  completely.  He  instructed 
England,  and  he  satisfied  America. 


' '  Two  years  later  Sir  Stafford  Northcote  wrote  to  Mr.  Sumner, 
after  reading  the  speech  again  :  '  Though  I  must  own  your 
speech  was  somewhat  sharp,  I  verily  believe  that  it  taught  us  a 


I08  THE    ALABAMA    ARBITRATION. 

The  Senate  refused,  with  only  one  dissenting  vote, 
to  ratify  the  treaty.  In  communicating  in  a  dispatch 
of  April  19th,  1869,  to  Mr.  Reverdy  Johnson  the  re- 
jection of  the  treaty,  Hamilton  Fish,  the  new  Secretary 
of  State,  wrote  that  President  Grant  was  not  without 
hope  that  the  two  countries  might  yet  find  an  amicable 
and  satisfactory  means  of  adjusting  the  controversy. 
When  Mr.  Johnson  communicated  this  to  Lord  Clar- 
endon, the  latter  said  that  Her  Majesty's  Government 
desired  that  all  difficulties  between  the  two  nations 
should  be  settled  honorably,  and  that  the  relations 
between  the  two  countries  might  be  most  friendly  and 
amicable.^ 

In  May  1 869,  Mr.  Thomas  Balch,  who  had  returned 
home  for  a  time,  discussed  at  Washington,  with 
Senator  Sumner  ^  and  also  with  Secretary  Fish  and 

valuable  lesson  in  that  respect,  and  that  we  may  say  of  it,  fidelia 
vulnera  mnantis.^ 

"Mr.  Sumner's  course  was  justified  by  the  event,  and  the 
words,  which  seemed  likely  to  prevent  an  adjustment,  paved  the 
way  to  a  real  settlement  as  he  intended."  Charles  Suvincr^  by 
Moorfield  Storey.     Boston  and  New  York,  1900,  pages  367,  368. 

^Correspondence  co7icer7img  Claims  Against  Great  Britain. 
Volume  III.  Washington:  Government  Printing  Office,  1870, 
pages  786,  787. 

®^  Senator  Sumner  and  Mr.  Balch  were  personal  friends  for 
many  years,  and  the  following  letters  throw  light  on  Senator 
Sumner's  views  upon  the  Alabama  question  and  English  opinion, 
after  the  rejection  of  the  Johnson-Clarendon  Convention. 


THE   ALABAMA    ARBITRATION.  IO9 

President  Grant,^^  the  possibilities  of  settling  the  Ala- 
bama controversy  in  a  peaceable  manner,  and  urged 
upon  all  three  the  submission  of  the  whole  question 
to  the  decision  of  a  Court  of  Arbitration  composed 

"Washington, 

"24th  May,  '69. 
"  Dear  Mr.  Balch, 

"  I  have  read  these  enclosures  with  interest.  I  remember  Mr. 
B.'s  father — as  'lead  Beaumont,'  and  was  familiar  at  the  time 
with  his  most  expensive  party  contest. 

' '  The  view  of  yr.  correspondent  is  sensible.  I  now  under- 
stand what   D' Israeli  meant  when  he  called  'that  wild 

man.'     But  all  England  seems  to  be  '  wild.' 

"  Sincerely  yours, 

"CHARLES  SUMNER." 

Washington, 

"  ist  June,  '69. 

' '  Thanks  for  this  letter,  which  shows  returning  reason  in  Eng- 
land. Is  it  not  strange,  the  scene  of  the  last  month?  Will 
Englishmen  ever  do  me  justice  ? 

' '  Ever  Yours, 

"CHARLES  SUMNER." 

"Washington, 

"6th  June,  '69. 
"  My  Dear  Mr.  Balch, 

"Calm  the  English  and  teach  them  to  be  just.  lis  veiileid 
itre  litres  et  ne  savent  pas  Hre  justes.  These  were  the  words  of 
old  Sieyes. 

"Think  of  their  press  attacking  a  speech  for  weeks  which  it 

^®  Manuscript  notes  of  Mr.  Balch. 


I  lO  THE    ALABAMA    ARBITRATION. 

exclusively  of  jurists  ;  he  deprecated  also  any  further 
attempt  to  press  the  question  of  the  recognition  in 
the  Queen's  Proclamation  of  the  Confederate  States 
as  belligerents.^' 

never  laid  before  its  readers.  Of  course,  every  article  was  a  mis- 
representation. <  <  Yours  sincerely, 

"CHARLES  SUMNER." 

"Washington, 

"  nth  June,  '69. 
"  Dear  Mr.  Balch, 

*  *  *  *  -x-  *  * 

' '  Was  there  ever  such  a  foolish  six  weeks  as  England  has 
passed  misrepresenting  a  speech  which  their  press  did  not  publish  ! 
Their  case  is  not  improved.  Sooner  or  later  they  will  be  obliged 
to  listen.  <  I  Sincerely  yours, 

"CHARLES   SUMNER." 

"Washington, 

"  15th  June,  '69. 
"  Dear  Mr.  Balch, 

"The  Seward  dispatch  is  well  known.  It  is  one  of  those 
early  docts.  which  show  that  he  did  not  understand  the  case  any 
more  than  the  English  understand  it  now.     Was  England  ever 

before  so  false  and  mean  ?     The  mean  are  always  false. 

******* 

' '  Faithfully  yours, 

"CHARLES  SUMNER. 

' '  One  of  my  correspondents  says  that  Sir  Henry  B.  [probably 
Sir  Henry  Bulwer]  is  the  only  Englishman  who  has  kept  his 
temper  and  is  fair  minded  now." 

"The  following  extract  is  taken  from  notes  written  in  1872  by 
Mr.  Balch  upon  the  Alabama  question: — 

* '  In  Mauran  vs.  the   Insurance  Company,  we  had  ourselves 


THE    ALABAMA    ARBITRATION.  I  I  I 

In  the  spring  of  1869,  John  Lothrop  Motley,  the 
eminent  historian,  succeeded  Mr.  Johnson  as  Minister 
to  England.  Mr.  Fish  in  his  instructions  to  Mr. 
Motley  sought  to  keep  three  objects  in  view : — First, 
to  show  that  the  rejection  of  the  Johnson-Clarendon 
Convention  for  the  settlement  of  claims,  was  not  an 
unfriendly  act ;  second,  to  propose  a  suspension  of 
discussion  until  public  feeling  had  grown  more  calm ; 

recognized  the  Belligerent  Status  of  the  South,  four  days  after 
the  Queen's  Proclamation.  Apart  from  this  decision  I  was  and 
am  among  the  American  lawyers  who  maintain  that  the  alleged 
offense  in  the  Queen's  Proclamation  was  not  an  offense  by  Inter- 
national Law  ;  and,  accordingly,  in  my  interviews  with  Mr.  Sum- 
ner and  others  during  my  visit  in  Washington,  I  deprecated  any 
further  attempt  to  moot  this  point." 

Compare  "  Mauran  vs.  Insurance  Company,"  6  Wallace's 
United  States  Sitpreme  Court  Reports,  pages  i,  2,  13  et  seq.  : 
"  Fifield  vs.  Insurance  Company,"  47  Peymsylvania  State,  page 
166  :  "  Charles  E.  Dole  and  another  vs.  The  New  England  Mutual 
Marine  Insurance  Company,"  "The  same  vs.  The  Equitable 
Safety  Insurance  Company,"  6  Allen  (Massachusetts),  page  373  : 
and  Commentaire  sur  les  Elements  dii  Droit  International  et  sur 
r  Histoire  des  Progres  du  Droit  des  Gens  de  He?iry  VVheato7i, 
by  William  Beach  Lawrence;  Leipzig:  F.  A.  Brockhaus,  1868. 
Volume  I.,  pages  184,  185. 

See  also,  by  George  Bemis,  Esq.,  Hasty  Recognition,  pub- 
lished at  Boston,  May  30th,  1865:  British  Neutrality — Hasty 
Recognitio7i  of  Rebel  Belligerency  and  Our  Right  to  Complain 
of  it ;  from  the  New  York  Times,  March  i6th,  1868.  Re- 
printed in  Correspondence  concerjiing  Claims  Against  Great 
Britain.  Volume  IV.  Washington  :  Government  Printing  Office, 
1869,  pages  12-46. 


112  THE   ALABAMA   ARBITRATION. 

and  third,  to  make  it  clear  that  the  United  States  did 
not  base  its  claims  for  da^nages  against  England  on  the 
latter  s  recognition  of  the  Confederate  States  as  bel- 
ligerents.^ Mr.  Fish  instructed  Mr.  Modey  after  the 
latter's  arrival  in  London  to  inform  Lord  Clarendon 
that  any  future  negotiadons  concerning  the  Alabama 
claims  would  be  conducted  at  Washington.  Sir  John 
Rose,  a  member  of  the  Canadian  Ministry,  arrived  in 

^Mr.  Fish  in  his  instructions  to  Mr.  Motley  on  May  15th, 
1869,  wrote: — 

' '  The  President  recognizes  the  right  of  every  power,  when  a 
civil  conflict  has  arisen  within  another  State,  and  has  attained  a 
sufficient  complexity,  magnitude  and  completeness,  to  define  its 
own  relations  and  those  of  its  citizens  and  subjects  toward  the 
parties  to  the  conflict,  so  far  as  their  rights  and  interests  are 
necessarily  affected  by  the  conflict. 

' '  The  necessity  and  the  propriety  of  the  original  concession  of 
belligerency  by  Great  Britain  at  the  time  it  was  made  have  been 
contested  and  are  not  admitted.  They  certainly  are  question- 
able, but  the  President  regards  that  concession  as  a  part  of  the 
case  only  so  far  as  it  shows  the  beginning  and  the  animus  of  that 
course  of  conduct  which  resulted  so  disastrously  to  the  United 
States.     It  is  important,  in  that  it  foreshadows  subsequent  events. 

' '  There  were  other  powers  that  were  contemporaneous  with 
England  in  similar  concession,  but  it  was  in  England  only  that 
the  concession  was  supplemented  by  acts  causing  direct  damage 
to  the  United  States.  The  President  is  careful  to  make  this  dis- 
crimination, because  he  is  anxious  as  much  as  possible  to  simplify 
the  case,  and  to  bring  into  view  these  subsequent  acts,  which  are  so 
important  to  determining  the  question  between  the  two  countries." 
Correspondence  concerning  Claims  Against  Great  Britain. 
Volume  VI.  Washington:  Government  Printing  Office,  1871, 
pages  3,  4. 


THE    ALABAMA    ARBITRATION.  II3 

the  summer  of  1869,  ostensibly  to  arrange  some 
commercial  matters,  but  really  to  sound  the  United 
States  Government  upon  the  possibility  of  settling 
the  Alabama  claims.^^  Mr.  Fish  told  Sir  John  Rose 
that  some  time  must  elapse  to  allow  the  irritation 
that  Senator  Sumner's  speech  had  caused  in  Eng- 
land to  quiet  down,  and  "  that  when  the  excitement 
subsided  the  appointment  as  special  envoy  of  some 
man  of  high  rank,  authorized  to  express  some  kind 
word  of  regret,  would  pave  the  way  for  a  settlement ; 
and  he  outlined  to  Sir  John  the  exact  scheme  for  set- 
tlement which  was  adopted  a  year  and  a  half  later." 
President  Grant  in  his  message  to  Congress,  De- 
cember 5th,  1870,  spoke  with  regret  of  the  failure  of 
the  two  Governments  to  come  to  some  understanding 
on  the  subject.  Early  in  January,  1871,  Sir  John  Rose 
again  visited  Washington  on  a  confidential  mission.'*' 

®®  Mr.  Fish  and  the  Alabama  Claims.  A  Chapter  in  Diplo- 
matic History,  by  J.  C.  Bancroft  Davis.  Boston  and  New  York, 
1893,  pages  44-46. 

The  celebrated  international  jurist,  Dr.  Bluntschli,  professor  at 
Heidelberg,  reviewed  in  1870  for  La  Revue  de  Droit  international 
et  de  legislation  compar^e  (Bruxelles)  the  Alabama  question  in  an 
article  entitled,  Opinion  impartiale  sur  la  Question  de  P  Alabama 
et  stir  la  Maniere  de  la  Rhoudre. 

"  Mr.  Fish  and  the  Alabama  Claims.  A  Chapter  in  Diplo- 
matic History,  by  J.  C.  Bancroft  Davis.  Boston  and  New  York, 
1893,  pages  59-64.  Memoir  and  Letters  of  Charles  Simmer,  by 
Edward  L.  Pierce.     Boston,  1893.     Volume  IV.,  page  467. 


114  THE    ALABAMA    ARBITRATION. 

After  twenty  months  of  intermittent  secret  negotia- 
tions, an  accord  was  finally  reached,  which  found  formal 
expression  in  four  notes  that  passed  between  Sir  Ed- 
ward Thornton,  the  English  Minister  at  Washington, 
and  Secretary  Fish.''  In  a  note  of  January  26th,  187 1, 
Sir  Edward  Thornton  proposed  to  Mr.  Fish  the  ap- 
pointment of  a  Joint  High  Commission  to  settle  the 
northeast  fisheries  and  any  other  outstanding  differ- 
ences between  the  two  countries.  Four  days  later 
Secretary  Fish  wrote  to  Sir  Edward,  that  the  President 
approved  of  the  proposal,  but  it  was  essential  to  in- 
clude the  Alabama  claims  in  the  suggested  settlement. 
Two  days  later,  the  English  Minister  replied  that  his 
Government  would  be  pleased  to  have  the  Alabama 
claims  submitted  to  the  same  Joint  High  Commission, 
provided  that  all  other  claims  by  British  and  American 
citizens  arising  from  the  acts  of  the  Civil  War  were 
similarly  referred.  On  the  3d  of  February,  Secretary 
Fish  wrote  to  the  English  Minister,  that  the  President 
assented  to  the  proposal  to  refer  to  the  same  Com- 
mission all  claims  of  citizens  of  either  nation  growing 
out  of  acts  committed  during  the  Civil  War. 

"  The  National  and  Private  ''Alabama  Clairns''  and  their 
'^'^ final  and  amicable  settlement,''''  by  Charles  C.  Beaman,  Jr. 
Printed  by  W.  H.  Moore,  Washington,  D,  C,  1871,  pages 
308-310.  Correspondence  concerning  Claims  Against  Great 
Britain.  Volume  VI.  Washington :  Government  Printing 
Office,  1 87 1,  pages  15-18. 


CHAPTER  VI. 

The  Joint  High  Commission  was  organized  at  Wash- 
ington on  February  27th,  1871.^^  The  representatives 
of  the  United  States  were  Hamilton  Fish,  Secretary 
of  State,  Mr.  Justice  Nelson  of  the  Supreme  Court, 
General  Robert  C.  Schenck,  just  appointed  Minister 
to  England,  Ebenezer  Rockwood  Hoar,  of  Massachu- 
setts, and  George  H.  Williams,  of  Oregon.  The 
representatives  of  Great  Britain  were  Earl  de  Grey 
and  Ripon,  a  member  of  the  English  Cabinet,  Sir 
Stafford  Henry  Northcote,  of  Her  Majesty's  opposi- 
tion. Sir  Edward  Thornton,  Minister  at  Washington, 
Professor  Mountague  Bernard  of  Oxford  University, 
and  Sir  John  A.  Macdonald,  the  Premier  of  Canada. 
Finally,  after  many  and  long  deliberations,  the  Com- 
missioners agreed  upon  and  signed  on  the  8th  of 
May,  1 87 1,  the  treaty  that  became  known  by  the  name 
of  the  city,  where  they  negotiated — the  Treaty  of 
Washington. 

"  Papers  relating  to  the  Treaty  of  Washington.  Volume  I. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  page  9  et  seq.  Mr.  Fish  and  the  Alabama  Claims.  A 
Chapter  in  Diplomatic  History,  by  J.  C.  Bancroft  Davis.  Boston 
and  New  York,  1892,  page  70  et  seq. 

(115) 


I  I  6  THE    ALABAMA    ARBITRATION. 

The  treaty  consisted  of  a  preamble  and  forty-three 
articles.  The  preamble  and  the  first  eleven  articles 
related  to  the  Alabama  claims.  The  next  six  articles, 
from  twelve  to  seventeen,  both  included,  referred  to 
claims  of  citizens  of  the  United  States  against  Eng- 
land and  of  claims  of  British  subjects  against  the 
United  States  arising  from  acts  committed  against 
the  person  or  property  of  such  individuals  during  the 
course  of  the  Civil  War.  Then  the  succeeding  arti- 
cles beginning  with  the  eighteenth  and  ending  with 
the  thirty-third,  provided  for  the  settlement  of  the 
North  Atlantic  fisheries;  the  navigation  of  the  St. 
Lawrence,  the  Yukon  and  other  rivers,  of  Lake  Michi- 
gan, and  of  certain  canals ;  for  a  system  of  bonded 
transit;  for  certain  features  of  the  coasting  trade; 
and  for  the  exemption  from  duty  of  lumber  cut  in 
United  States  territor}'  along  the  St.  John  River  and 
floated  down  to  the  sea.  The  remaining  articles, 
except  the  last,  that  related  to  the  exchange  of  ratifi- 
cation, arranged  for  the  submission  to  the  arbitration 
of  the  Emperor  of  Germany  of  the  San  Juan  water 
boundary  between  the  Territory  of  Washington  and 
British  Columbia. 

The  provisions  of  the  treaty  relating  to  the  Ala- 
bama claims  met  in  substance  the  requirements  laid 
down  by  Senator  Sumner  in  his  speech  in  opposi- 
tion to  the  Johnson-Clarendon  Convention. 


THE   ALABAMA   ARBITRATION.  I  I  7 

The  first  article  referred  to  the  power  that  the  Eng- 
lish Government  had  granted  to  its  commissioners 
"  to  express,  in  a  friendly  spirit,  the  regret  felt  by 
Her  Majesty's  Government  for  the  escape  of  the 
Alabama  and  other  vessels  from  British  ports,  and 
for  the  depredations    committed  by   those   vessels." 

Then,  further,  instead  of  leaving  the  choice  of  an 
arbitrator  to  the  chance  of  lot,  the  same  article  pro- 
vided for  the  constitution  of  a  Court  of  Arbitration 
to  hear  and  try  the  case,  in  the  following  manner : — 

"  Now,  in  order  to  remove  and  adjust  all  complaints 
and  claims  on  the  part  of  the  United  States,  and  to 
provide  for  the  speedy  settlement  of  such  claims, 
which  are  not  admitted  by  Her  Britannic  Majest)^'s 
Government,  the  High  Contracting  Parties  agree  that 
all  the  said  claims,  growing  out  of  acts  committed  by 
the  aforesaid  vessels,  and  generically  known  as  the 
'  Alabama  Claims,'  shall  be  referred  to  a  Tribunal  of 
Arbitration,  to  be  composed  of  five  Arbitrators,  to  be 
appointed  in  the  following  manner,  that  is  to  say : 
One  shall  be  named  by  the  President  of  the  United 
States ;  one  shall  be  named  by  Her  Britannic  Majesty; 
His  Majesty  the  King  of  Italy  shall  be  requested  to 
name  one  ;  the  President  of  the  Swiss  Confederation 
shall  be  requested  to  name  one ;  and  His  Majesty  the 
Emperor  of  Brazil  shall  be  requested  to  name  one. 

"  In  case  of  the  death,  absence,    or   incapacity  to 


Il8  THE    ALABAMA    ARBITRATION. 

serve  of  any  or  either  of  the  said  Arbitrators,  or  in 
the  event  of  either  of  the  said  Arbitrators  omitting  or 
declining  or  ceasing  to  act  as  such,  the  President  of 
the  United  States,  or  Her  Britannic  Majesty,  or  His 
Majesty  the  King  of  Italy,  or  the  President  of  the 
Swiss  Confederation,  or  His  Majesty  the  Emperor  of 
Brazil,  as  the  case  may  be,  may  forthwith  name  another 
person  to  act  as  Arbitrator  in  the  place  and  stead  of 
the  Arbitrator  originally  named  by  such  Head  of  a 
State. 

"And  in  the  event  of  the  refusal  or  omission  for 
two  months  after  receipt  of  the  request  from  either  of 
the  High  Contracting  Parties  of  His  Majesty  the  King 
of  Italy,  or  the  President  of  the  Swiss  Confederation, 
or  His  Majesty  the  Emperor  of  Brazil,  to  name  an 
Arbitrator  either  to  fill  the  original  appointment  or  in 
the  place  of  one  who  may  have  died,  be  absent,  or  in- 
capacitated, or  who  may  omit,  decline,  or  from  any 
cause  cease  to  act  as  such  Arbitrator,  His  Majesty  the 
King  of  Sweden  and  Norway  shall  be  requested  to 
name  one  or  more  persons,  as  the  case  may  be,  to 
act  as  such  Arbitrator  or  Arbitrators."^^ 

The  next  four  articles  provided  for  the  meeting  of 
the  Court  at  Geneva,  for  the  limit  of  time  and  manner 

"^^Papers  relating  to  the  Treaty  of  Washington.  Volume  I. 
Geneva  Arbitratiofi.  Washington  :  Government  Printing  Office 
1872,   page  12. 


THE   ALABAMA   ARBITRATION.  II9 

of  preparing  the  cases  and  counter  cases,  and  the  pres- 
entation of  arguments  on  each  side. 

In  the  sixth  article  the  two  powers  agreed  upon 
three  rules  that  should  apply  to  the  case.  The  three 
rules  were  as  follows  : 

"A  neutral  Government  is  bound — 

"First,  to  use  due  diligence  to  prevent  the  fitting 
out,  arming,  or  equipping,  within  its  jurisdiction,  of 
any  vessel  which  it  has  reasonable  ground  to  believe 
is  intended  to  cruise  or  to  carry  on  war  against  a 
Power  with  which  it  is  at  Peace  ;  and  also  to  use  like 
diligence  to  prevent  the  departure  from  its  jurisdiction 
of  any  vessel  intended  to  cruise  or  carry  on  war  as 
above,  such  vessel  having  been  specially  adapted,  in 
whole  or  in  part,  within  such  jurisdiction  to  warlike  use. 

"  Secondly,  not  to  permit  or  suffer  either  belliger- 
ent to  make  use  of  its  ports  or  waters  as  the  base  of 
naval  operations  against  the  other,  or  for  the  purpose 
of  the  renewal  or  augmentation  of  military  supplies  or 
arms,  or  the  recruitment  of  men. 

"  Thirdly,  to  exercise  due  diligence  in  its  own  ports 
and  waters,  and,  as  to  all  persons  within  its  jurisdic- 
tion, to  prevent  any  violation  of  the  foregoing  obliga- 
tions and  duties."  '^ 

These  rules  were  followed  with  a  declaration  in  the 

"^^ Papers  relating  to  the  Treaty  of  Washington.  Volume  I. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  pages  14,   207  et  seq. 


I20  THE    ALABAMA    ARBITRATION. 

same  article  by  the  English  Government  that  it  did 
not  assent  to  the  "  rules  as  a  statement  of  the  princi- 
ples of  International  Law  which  were  in  force  at  the 
time "  the  Alaba^na  claims  arose,  but  in  order  to 
strengthen  "the  friendly  relations  between  the  two 
countries,  ''^  '•'  '='  the  Arbitrators  should  assume 
that  Her  Majesty's  Government  had  undertaken  to 
act  upon  the  principles  set  forth  "  in  the  rules. 

The  other  five  articles — from  seven  to  eleven  both 
inclusive — related  to  the  manner  of  rendering  the 
decision,  the  part  each  nation  should  bear  of  the  ex- 
penses of  the  Court,  that  a  majority  of  the  Court 
should  decide,  and  that  the  decision  should  be  final. 

These  eleven  articles  secured  a  decision  upon  all 
claims  national  as  well  as  individual  growing  out  of 
the  acts  committed  by  the  Confederate  cruisers,  and 
"  generically  known  as  the  Alabama  claims."  The 
United  States  Senate  confirmed  the  treaty.  May  24th, 
Senator  Sumner  voting  for  it. 

In  England  there  were  signs  of  relief  that  a  plan 
for  the  settlement  of  the  Anglo-American  differences 
at  length  was  agreed  upon  :  but  there  was  also  some 
criticism  of  the  treaty.  Earl  Russell  attacked  it  in 
the  House  of  Lords,  June  12th,  1871.  The  three 
rules  were  criticised  severely  :  it  was  said  that  they 
would  prevent  neutral  traders  from  selling  arms  and 
munition  of  war  in  the  ordinary  course  ot  commerce. 


THE   ALABAMA   ARBITRATION.  121 

The  United  States  chose  for  their  agent  Mr.  J.  C. 
Bancroft  Davis,  to  whom  they  entrusted  the  preparation 
of  their  case :  for  their  counsel  they  appointed  Will- 
iam M.  Evarts,  Caleb  Gushing,  and  Morris  R.  Waite, 
afterwards  Chief  Justice  of  the  Supreme  Court. 

Great  Britain  entrusted  the  preparation  of  her  case 
to  the  Lord  Chancellor,  with  the  assistance  of  Lord 
Tenderden  and  Professor  Bernard :  she  named  Sir 
Roundell  Palmer  as  her  counsel. 

In  accordance  with  the  provisions  in  Article  I.  for 
the  appointment  of  the  members  of  the  Tribunal,  the 
President  of  the  United  States  named  as  arbitrator 
Charles  Francis  Adams,  who  during  the  long  course 
of  the  war  and  for  more  than  two  years  after  repre- 
sented and  defended  American  interests  with  such  rare 
courtesy  and  ability  ;  the  Queen  of  England  chose 
Sir  Alexander  Cockburn,  Lord  Chief  Justice  of  Eng- 
land; the  King  of  Italy  appointed  Count  Frederic 
Sclopis,  a  distinguished  judge  and  lawyer  of  European 
reputation ;  the  President  of  the  Swiss  Confederation 
chose  Monsieur  Jacques  Staempfli  of  Berne,  who  had 
served  three  times  as  President  of  the  Confederation ; 
and  the  Emperor  of  Brazil  named  Marcos  Antonio 
d'Araujo,  Baron  d'ltayuba,  Brazilian  Minister  at 
Paris.  "^^ 

'^  The  Treaty  of  Washington,  its  Negotiatio7i,  Execiitio7i,  and  the 
Discussion  relating  thereto,  by  Caleb  Gushing.  New  York  :  1873, 
pages  26,  78-94. 


CHAPTER   VII. 

On  December  15th,  1871,  in  the  "Salle  des  Con- 
ferences "  at  the  Hotel  de  Ville  of  Geneva,  the  Court 
met  and  organized  with  Count  Sclopis  as  president.'^^ 
After  a  speech  of  Count  Sclopis,  opening  the  pro- 
ceedings, the  agents  of  the  two  litigant  nations  pre- 
sented the  case  of  their  respective  countries  to  the 
Court.  The  Tribunal  then  "directed  that  the  re- 
spective counter  cases,  additional  documents "  et 
cetera  should  be  presented  on  or  before  the  15th  of 
April  following.  On  December  i6th  the  Court  met 
and  adjourned  until  June  15th,  1872." 

When  the  contents  of  the  American  Case  became 
known,  the  English  press  commented  at  first  severely 
on  the  chapter  on  "unfriendliness";  gradually,  how- 
ever, the  English  journals  dropped  their  attacks  on 
that  part  of  the  case  to  criticise  the  "  indirect  claims" 

'*  Papers  relating  to  the  Treaty  of  Waslmigtoii.  Volume  IV. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  page  14.  The  Treaty  of  Washingtoti,  its  Negotiation, 
Execution,  and  the  Discussion  relating  thereto,  by  Caleb  Gushing, 
New  York  :  1873,  page  74  et  seq. 

'^''Papers  relating  to  the  Treaty  of  Washington.  Volume  IV. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  page  16. 

(122) 


THE    ALABAMA    ARBITRATION.  I  23 

that  the  United  States  put  forward.'*'  In  January, 
1872,  the  comments  on  that  subject  became  in  some 
cases  severe,  and  the  EngHsh  papers  generally  said 
that  something  must  be  done  to  guard  England 
against  any  possibilities  of  being  called  upon  to  pay 
damages  for  the  indirect  claims. 

The  Queen,  in  her  speech  to  Parliament  on  the  6th 
of  February  said  : 

"  The  arbitrators  appointed  pursuant  to  the  Treaty 
of  Washington,  for  the  purpose  of  amicably  settling 
certain  claims  known  as  the  Alabama  claims,  have 
held  their  first  meeting  at  Geneva. 

"  Cases  have  been  laid  before  the  arbitrators  on 
behalf  of  each  party  to  the  treaty.  In  the  Case  so 
submitted  on  behalf  of  the  United  States,  large  claims 
have  been  included  which  are  understood  on  my  part 
not  to  be  within  the  province  of  the  arbitrators.     On 

^'  The  claims  as  stated  by  the  American  Commissioners  were 
classified  as  follows  : 

"  I .  The  claims  for  direct  losses  growing  out  of  the  destruction 
of  vessels  and  their  cargoes  by  the  insurgent  cruisers. 

"  2.   The  national  expenditures  in  the  pursuit  of  those  cruisers. 

' '  3.  The  loss  in  the  transfer  of  the  American  commercial 
marine  to  the  British  flag. 

' '  4,   The  enhanced  payments  of  insurance. 

"5.  The  prolongation  of  the  war  and  the  addition  of  a  large 
sum  to  the  cost  of  the  war  and  the  suppression  of  the  rebellion." 

Papers  relatiiig  to  the  Treaty  of  Washington.  Volume  I. 
Geneva  Arbitration.  Washington :  Government  Printing  Office, 
page  185.     3.,  Volume  IV.,  pages  4,  5. 


124  THE    ALABAMA    ARBITRATION. 

this  subject  I  have  caused  a  friendly  communication 
to  be  made  to  the  Government  of  the  United  States." 

When  the  Treaty  of  Washington  was  completed, 
the  American  Commissioners  thought  it  distinctly 
provided,  and  the  English  Commissioners  thought  it 
as  distinctly  did  not  provide,  to  refer  the  "  indirect 
claims  "  to  a  Court  of  Arbitration.''-' 

When  the  two  Governments  understood  that  they 
held  different  views  on  that  point,  their  respective 
agents  conferred  and  discussed  frequently  the  sub- 
ject with  the  object  of  avoiding  a  clash  upon  that  ques- 
tion, and  the  consequent  failure  of  the  arbitration.  A 
satisfactory  settlement  of  the  differences  was  most 
difficult.  When  the  Tribunal  reconvened,  on  June 
15th,  Lord  Tenderden,  instead  of  delivering  the 
printed  argument  of  England,  asked  the  Court  to 
adjourn  for  eight  months. '^^     The  same  day,  Mr,  Davis 

"  Life,  Letters  and  Diaries  of  Sir  Stafford  Ahrthcote,  First 
Earl  of  Iddesleigh,  by  Andrew  Lang.  Edinburgh  and  London, 
1890,  vol.  IL,  pages  5-13,  passim.  Mr.  Fish  and  the  Ala- 
bama Claims.  A  Chapter  in  Diplomatic  History,  by  J.  C. 
Bancroft  Davis.  Boston  and  New  York,  1893,  pages  74-82, 
89-96.  Papers  relating  to  the  Treaty  of  Washington.  Volume 
II.  Geneva  Arbitration.  Washington :  Government  Printing 
Office,  1872.  Pages  434,  593-604.  Charles  Siunner,  by  Moor- 
field  Storey.     Boston  and  New  York,  igoo,  pages  368,  369. 

^^ Papers  relating  to  the  Treaty  of  Washing to7i.  Volume  W . 
Ge7ieva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  pages  6,  17,  18. 


THE    ALABAMA    ARBITRATION.  I  25 

and  Lord  Tenderden  had  an  interview,  and  then,  after 
many  pourparlers  during  the  next  few  days,  between 
Mr.  Davis  and  Mr.  Adams  and  the  American  coun- 
sel on  the  one  side,  and  Lord  Tenderden  and  Sir 
Roundell  Palmer  on  the  other  side,  the  two  agents 
came  to  an  agreement. ^^  On  June  19th,  Count 
Sclopis,  as  head  of  the  Tribunal,  embodied  it  in 
formal  words.  He  said,  on  behalf  of  all  the  mem- 
bers of  the  Court,  that,  without  expressing  any 
opinion  on  the  point  in  difference  as  to  the  meaning 
of  the  treaty,  the  Court  thought,  individually  and 
collectively,  that  the  "  indirect  claims  "  did  not  con- 
stitute, upon  the  principles  of  International  Law 
applicable  to  such  cases,  good  grounds  for  an  award 
of  damages  between  nations,  and,  upon  such  princi- 
ples, the  Tribunal,  even  if  there  were  no  disagreement 
between  the  two  litigant  governments  as  to  the  com- 
petency of  the  Court  to  decide  thereon,  would  exclude 
them  altogether  in  making  its  award. ^-  This  announce- 

^^ Papers  relati7ig  to  the  Treaty  of  Washington.  Volume  IV. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  pages  6,  19.  Mr.  Fish  and  the  Alabama  Claims.  A  Chap- 
ter in  Diplomatic  History,  by  J.  C.  Bancroft  Davis.  Boston  and 
New  York,  1893,  pages  98-102.  Charles  Francis  Adams,  by  his 
son,  Charles  Francis  Adams.     Boston,  1900,  pages  394,  395. 

*^  The  Treaty  of  Washington,  its  Negotiation,  Execution,  and  the 
Discussion  relating  thereto,  by  Caleb  Cushing.  New  York  :  1873, 
page  69  et  seq. 


126  THE   ALABAMA    ARBITRATION. 

ment  practically  ended  the  subject;  for  at  the  next 
meeting  of  the  Tribunal,  a  few  days  later,  Mr.  Davis 
informed  the  Court  that,  inasmuch  as  it  was  of  the 
opinion  that  it  did  not  have  jurisdiction  to  try  the 
"  indirect  claims,"  his  Government  had  empowered 
him  to  say  that  it  would  not  press  those  claims  further, 
or  urge  them  as  a  consideration  in  any  award  that  the 
Court  might  decree.^'^  Two  days  afterwards,  Lord 
Tenderden,  in  behalf  of  Great  Britain,  said  that  in 
consequence  of  the  decision  of  the  Court  that  it  had 
not  jurisdiction  to  try  the  "indirect  claims"  and  the 
statement  of  the  American  agent  on  the  subject,  his 
Government  had  instructed  him  to  request  leave  to 
withdraw  the  application  for  an  adjournment  and  to 
present  the  British  printed  argument.  This  request 
was  readily  granted,  and  the  case  proceeded.^ 

Then,  after  holding  many  sittings  to  hear  the  argu- 
ment of  counsel,  the  Court  rendered  its  decision  on 
September  14th,  1872.  As  to  the  Alabama  the  Tri- 
bunal was  unanimous  that  England  had  failed  to  ful- 
fill the  duties  prescribed  by  the  first  and  the  third  of 


^^Papers  relating  to  the  Treaty  of  Washhigton.  Volume  IV. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  page  21. 

^Papers  relating  to  the  Treaty  of  Washington.  Volume  IV. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  page  21. 


THE    ALABAMA    ARBITRATION.  I  27 

the  three  rules  established  by  the  Treaty  of  Washing- 
ton. In  the  case  of  the  Oreto,  the  Court  held,  Sir 
Alexander  Cockburn  dissenting,  that  Great  Britain 
had  failed  to  perform  the  duties  prescribed  by  the 
three  rules.  As  to  the  Sheftandoah,  the  Court  de- 
cided by  three  votes  to  two.  Sir  Alexander  Cock- 
burn  and  Viscount  d'ltajuba  dissenting,  that  Eng- 
land had  failed  to  fulfill  her  duties  according  to  the 
three  rules  in  the  case  of  that  vessel,  "  from  and 
after  her  entry  into  Hobson's  Bay,"  and  that  Great 
Britain  was  responsible,  therefore,  for  the  acts  of  the 
Shenandoah  after  her  departure  from  Melbourne  on 
February  i8th,  1865.^ 

As  to  the  Tuscaloosa,  the  Clarence,  the  Tacony, 
and  the  Ai^cher,  tenders  either  of  the  Alabama  or  the 
Florida,  the  Court  was  unanimous  that  such  auxiliary 
vessels  "must  necessarily  follow  the  lot  of  their  prin- 
cipals." Concerning  the  Georgia,  the  Sumter,  the 
Nashville,  the  Tallahassee,  and  the  Chickamauga,  the 
Tribunal  was  unanimously  of  the  opinion  that  Eng- 
land was  not  responsible.  And  the  Court  held.  Sir 
Alexander  Cockburn   dissenting,  that  Great    Britain 

^Papers  relatiiig  to  the  Treaty  of  Washington.  Volume  IV. 
Geneva  Arbitration.  Washington  :  Government  Printing  Office, 
1872,  page  8  et  seq.,  \^-\Z passim,  a^c^et  seq.,  230-544. 

The  Treaty  of  Washington,  its  Negotiation,  Execution,  and  the 
Discussion  relating  thereto,  by  Caleb  dishing.  New  York  :  1873, 
pages  126-149. 


128  THE    ALABAMA    ARBITRATION. 

was  liable  to  the  United  States  in  damages  for  the 
losses  inflicted  upon  the  latter's  commerce  by  the 
Confederate  cruisers  built  in  England  to  the  amount 
of  fifteen  million  five  hundred  thousand  dollars 
($15,500,000),  payable  in  gold.  Sir  Alexander  Cock- 
burn  filed  a  separate  opinion  stating  his  reasons  for 
disagreeing  from  the  judgment  of  the  majority  of 
the    Court. 

Thus,  after  many  anxious  years,  when  at  times  the 
feelings  on  both  sides  of  the  Atlantic  ran  high,  a  burn- 
ing question  of  difference  between  two  powerful  na- 
tions— that,  had  it  continued  to  smoulder,  would  cer- 
tainly have  imbittered  their  relations  and  might  very 
likely  have  led  to  war  between  them — was  eliminated, 
through  a  course  of  action  alike  honorable  to  both 
sides,  in  a  peaceful  manner  from  the  sphere  of  their 
e very-day  relations. 


APPENDIX. 


APPENDIX. 


DECISION  AND   AWARD. 

Made  by  the  tribunal  of  arbitration  constituted  by  virtue  of  the  first 
article  of  the  treaty  concluded  at  Washington  the  8th  of  May, 
1 8"/ 1,  between  the  United  States  of  America  and  Her  Majesty  the 
Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland. 

The  United  States  of  America  and  Her  Britannic 
Majesty  having  agreed  by  Article  I.  of  the  treaty  con- 
Recital  of  eluded  and  signed  at  Washington  the 
'hTrtaTof  8'h  of  May,  ,871,  to  refer  all  the 
Washington,  claims  "generically  known  as  the  Ala- 
bama claims  "  to  a  tribunal  of  arbitration  to  be  com- 
posed of  five  arbitrators  named : 

One  by  the  President  of  the  United  States, 
One  by  Her  Britannic  Majesty, 
One  by  His  Majesty  the  King  of  Italy, 
One  by  the  President  of  the  Swiss  Confederation, 
One  by  His  Majesty  the  Emperor  of  Brazil ; 
And    the    President    of    the    United    States,    Her 
Appointment    Britannic     Majesty,      His     Majesty     the 
ofarbitrators.    j^jj^g  ^f  j^^|y^  ^j^e  President  of  the  Swiss 

Confederation,    and    His    Majesty    the    Emperor    of 

(131) 


132  THE    ALABAMA    ARBITRATION. 

Brazil  having  respectively  named  their  arbitrators, 
to  wit : 

The  President  of  the  United  States,  Charles  Francis 
Adams,  esquire ; 

Her  Britannic  Majesty,  Sir  Alexander  James  Ed- 
mund Cockburn,  baronet,  a  member  of  Her  Majesty's 
privy  council,  lord  chief  justice  of  England ; 

His  Majesty  the  King  of  Italy,  His  Excellency 
Count  Frederic  Sclopis,  of  Salerano,  a  knight  of  the 
Order  of  the  Annunciata,  minister  of  state,  senator 
of  the  Kingdom  of  Italy ; 

The  President  of  the  Swiss  Confederation,  M. 
Jacques  Staempfli ; 

His  Majesty  the  Emperor  of  Brazil,  his  Excellency 
Marcos  Antonio  d'Araujo,  Viscount  d'ltajuba,  a 
grandee  of  the  Empire  of  Brazil,  member  of  the 
council  of  H.  M.  the  Emperor  of  Brazil,  and  his 
envoy  extraordinary  and  minister  plenipotentiary  in 
France. 

And  the  five  arbitrators  above  named  having  as- 
Organization  sembled  at  Geneva  (in  Switzerland)  in 
of  tribunal.  q^^  of  the  chambers  of  the  Hotel  de  Ville 
on  the  15th  of  December,  1871,  in  conformity  with 
the  terms  of  the  second  article  of  the  Treaty  of  Wash- 
ington, of  the  8th  of  May  of  that  year,  and  having 
proceeded  to  the  inspection  and  verification  of  their 
respective  powers,  which  were  found  duly  authenti- 


THE   ALABAMA    ARBITRATION,  I  33 

cated,  the  tribunal  of  arbitration  was  declared  duly 
organized. 

The  agents  named  by  each  of  the  high  contract- 
ing parties,  by  virtue  of  the  same  Article  II.,  to 
wit: 

For  the  United  States  of  America,  John  C.  Ban- 
croft Davis,  esquire ; 

And  for  Her  Britannic  Majesty,  Charles  Stuart 
Aubrey,  Lord  Tenderden,  a  peer  of  the  United  King- 
dom, companion  of  the  Most  Honorable  Order  of  the 
Bath,  assistant  under-secretary  of  state  for  foreign 
affairs ; 

Whose  powers  were  found  likewise  duly  authenti- 
Delivery  of  cated,  then  delivered  to  each  of  the  arbi- 
cases.  trators  the  printed  case  prepared  by  each 

of  the  two  parties,  accompanied  by  the  documents, 
the  official  correspondence,  and  other  evidence  on 
which  each  relied,  in  conformity  with  the  terms  of  the 
third  article  of  the  said  treaty. 

In  virtue  of  the  decision  made  by  the  tribunal  at 
Delivery  of  ^^^  ^^^^  session,  the  counter-case  and  addi- 
counter-cases.  tional  documents,  correspondence,  and 
evidence  referred  to  in  Article  IV.  of  the  said  treat)- 
were  delivered  by  the  respective  agents  of  the  two 
parties  to  the  secretary  of  the  tribunal  on  the  15th  of 
April,  1872,  at  the  chamber  of  conference,  at  the 
Hotel  de  Ville  of  Geneva. 


134  "^HE    ALABAMA    ARBITRATION. 

The  tribunal,  in  accordance  with  the  vote  of  ad- 
Delivery  of  journment  passed  at  their  second  session, 
arguments.  h^jd  q^  the  1 6th  of  December,  1 871,  re- 
assembled at  Geneva  on  the  15th  of  June,  1872  ;  and 
the  agent  of  each  of  the  parties  duly  delivered  to  each 
of  the  arbitrators,  and  to  the  agent  of  the  other  party, 
the  printed  argument  referred  to  in  Article  V.  of  the 
said  treaty. 

The  tribunal  having  since  fully  taken  into  their  con- 
Deliberations  sideration  the  treaty,  and  also  the  cases, 
of  tribunal.  counter-cases,  documents,  evidence,  and 
arguments,  and  likewise  all  other  communications 
made  to  them  by  the  two  parties  during  the  progress 
of  their  sittings,  and  having  impartially  and  carefully 
examined  the  same. 

Award.     Has  arrived  at  the  decision  embodied  in 
the  present  award : 

Whereas,  having  regard  to  the  Vlth  and  Vllth 
articles  of  the  said  treaty,  the  arbitrators  are  bound 
under  the  terms  of  the  said  Vlth  article,  "in  decid- 
ing the  matters  submitted  to  them,  to  be  governed 
by  the  three  rules  therein  specified  and  by  such  prin- 
ciples of  international  law,  not  inconsistent  therewith, 
as  the  arbitrators  shall  determine  to  have  been  ap- 
plicable to  the  case  ;" 


THE    ALABAMA    ARBITRATION.  135 

And  WHEREAS  the  "due  diligence"  referred  to  in 

Definition  of      ^^^  ^^^^  ^"^  ^^^^^    ^^  ^^^    ^^^^  rules  ought 

due  diligence,  to  be  exercised  by  neutral  governments 
in  exact  proportion  to  the  risks  to  which  either 
of  the  belligerents  may  be  exposed,  from  a  fail- 
ure to  fulfill  the  obligations  of  neutrality  on  their 
part ; 

And  whereas  the  circumstances  out  of  which  the 
facts  constituting  the  subject-matter  of  the  present 
controversy  arose  were  of  a  nature  to  call  for  the  ex- 
ercise on  the  part  of  Her  Britannic  Majesty's  govern- 
ment of  all  possible  solicitude  for  the  observance  of 
the  rights  and  the  duties  involved  in  the  proclamation 
of  neutrality  issued  by  Her  Majesty  on  the  13th  day 
of  May,  1861  ; 

And  whereas  the  effects  of  a  violation  of  neutrality 
Effect  of  a  committed  by  means  of  the  construction, 
commission,  equipment,  and  armament  of  a  vessel  are 
not  done  away  with  by  any  commission  which  the 
government  of  the  belligerent  power,  benefited 
by  the  violation  of  neutrality,  may  afterwards  have 
granted  to  that  vessel  ;  and  the  ultimate  step, 
by  which  the  offense  is  completed,  cannot  be 
admissible  as  a  ground  for  the  absolution  of 
the  offender,  nor  can  the  consummation  of  his 
fraud  become  the  means  of  establishing  his  inno- 
cence ; 


136  THE   ALABAMA    ARBITRATION. 

And  whereas  the  privilege   of  exterritoriality  ac- 
corded to  vessels  of  war  has  been  admitted 

Exterritorial- 
ity of  vessels     into  the  law  of  nations,  not  as  an  absolute 

^  ^^^'  right,  but  solely  as  a  proceeding  founded 

on    the  principle  of  courtesy    and   mutual  deference 

between  different  nations,  and  therefore  can  never  be 

appealed  to  for  the  protection  of  acts  done  in  violation 

of  neutrality  ; 

And  whereas  the  absence  of  a  previous  notice  can- 
Effect  of  want  "^^  ^^  regarded  as  a  failure  in  any  consid- 
er notice.  eration  required  by  the  law  of  nations,  in 
those  cases  in  which  a  vessel  carries  with  it  its  own 
condemnation  ; 

And  whereas,  in  order  to  impart  to  any  supplies 

c  ,.  f  of  coal  a  character  inconsistent  with  the 
Supplies  of 

coal.  second  rule,  prohibiting  the  use  of  neutral 

ports  or  waters,  as  a  base  of  naval  operations  for 
a  belligerent,  it  is  necessary  that  the  said  supplies 
should  be  connected  with  special  circumstances  of 
time,  of  persons,  or  of  place,  which  may  combine  to 
give  them  such  character ; 

And  whereas,  with  respect  to  the  vessel  called  the 
Alabarna,    it  clearly  results   from  all   the 

Responsibility 

for  acts  of  the    facts  relative  to  the  construction  of  the  ship 
a  ania.         ^^  ^^^^  designated  by  the  number  "  290"  in 
the  port  of  Liverpool,  and   its  equipment  and  arma- 
ment in  the  vicinity  of  Terceira  through  the  agency 


THE    ALABAMA    ARBITRATION.  I  37 

of  the  vessels  called  the  Agrippina  and  the  Bahama, 
dispatched  from  Great  Britain  to  that  end,  that  the 
British  government  failed  to  use  due  diligence  in  the 
performance  of  its  neutral  obligations;  and  especially 
that  it  omitted,  notwithstanding  the  warnings  and 
official  representations  made  by  the  diplomatic 
agents  of  the  United  States  during  the  construction 
of  the  said  number  "  290,"  to  take  in  due  time  any 
effective  measures  of  prevention,  and  that  those 
orders  which  it  did  give  at  last,  for  the  detention  of 
the  vessel,  were  issued  so  late  that  their  execution 
was  not  practicable ; 

And  WHEREAS,  after  the  escape  of  that  vessel,  the 
measures  taken  for  its  pursuit  and  arrest  were  so  im- 
perfect as  to  lead  to  no  result,  and  therefore  cannot 
be  considered  sufficient  to  release  Great  Britain  from 
the  responsibility  already  incurred ; 

And  WHEREAS,  in  despite  of  the  violations  of  the 
neutrality  of  Great  Britain  committed  by  the  "290," 
this  same  vessel,  later  known  as  the  Confederate 
cruiser  Alabama,  was  on  several  occasions  freely 
admitted  into  the  ports  of  colonies  of  Great  Britain, 
instead  of  being  proceeded  against  as  it  ought  to  have 
been  in  any  and  every  port  within  British  jurisdiction 
in  which  it  might  have  been  found  ; 

And  WHEREAS  the  government  of  Her  Britannic 
Majesty  cannot  justify  itself  for  a  failure  in  due  dili- 


138  THE   ALABAMA    ARBITRATION. 

gence  on  the  plea  of  insufficiency  of  the  legal  means 
of  action  which  it  possessed : 

Four  of  the  arbitrators,  for  the  reasons  above 
assigned,  and  the  fifth  for  reasons  separately  assigned 
by  him, 

Are  of  opinion — 

That  Great  Britain  has  in  this  case  failed,  by  omis- 
sion, to  fulfill  the  duties  prescribed  in  the  first  and 
the  third  of  the  rules  established  by  the  Vlth  article 
of  the  Treaty  of  Washington. 

And   WHEREAS,    with  respect  to  the  vessel   called 

the    Florida,    it    results    from    all    the    facts    relative 

And  of  the   ^^     ^^     construction     of    the     Ore  to    in 

Florida,  the  port  of  Liverpool,  and  to  its  issue 
therefrom,  which  facts  failed  to  induce  the  author- 
ities in  Great  Britain  to  resort  to  measures  ade- 
quate to  prevent  the  violation  of  the  neutrality 
of  that  nation,  notwithstanding  the  warnings  and  re- 
peated representations  of  the  agents  of  the  United 
States,  that  Her  Majesty's  government  has  failed 
to  use  due  diligence  to  fulfill  the  duties  of  neu- 
trality ; 

And  whereas  it  likewise  results  from  all  the  facts 
relative  to  the  stay  of  the  Oi^eto  at  Nassau,  to  her 
issue  from  that  port,  to  her  enlistment  of  men,  to  her 
supplies,  and  to  her  armament,  with  the  co-operation 
of  the   British  vessel  Pririce  Alfred,  at  Green  Bay, 


THE    ALABAMA    ARBITRATION.  I  39 

that  there  was  negligence  on  the  part  of  the  British 
colonial  authorities ; 

And  WHEREAS,  notwithstanding  the  violation  of  the 
neutrality  of  Great  Britain  committed  by  the  Oreto, 
this  same  vessel,  later  known  as  the  Confederate 
cruiser  Florida,  was  nevertheless  on  several  occasions 
freely  admitted  into  the  ports  of  British  colonies ; 

And  WHEREAS  the  judicial  acquittal  of  the  Oreto 
at  Nassau  cannot  relieve  Great  Britain  from  the  re- 
sponsibility incurred  by  her  under  the  principles  of 
international  law ;  nor  can  the  fact  of  the  entry  of 
the  Florida  into  the  Confederate  port  of  Mobile,  and 
of  its  stay  there  during  four  months,  extinguish  the 
responsibility  previously  to  that  time  incurred  by 
Great  Britain  : 

For  these  reasons, 

The  tribunal,  by  a  majority  of  four  voices  to  one, 
is  of  opinion — 

That  Great  Britain  has  in  this  case  failed,  by 
omission,  to  fulfill  the  duties  prescribed  in  the  first, 
in  the  second,  and  in  the  third  of  the  rules  estab- 
lished by  Article  VI.  of  the  Treaty  of  Washington. 

And  WHEREAS,  with  respect  to  the  vessel  called 
And  of  the       the    Shenandoah,  it  results    from   all    the 

Shenandoah        r     .  i.-^^ij  ^  c  t 

after  leavine  l^-cts  relative  to  the  departure  from  Lon- 
Melbourne.  don  of  the  merchant-vessel  the  Sea  King, 
and    to    the    transformation  of  that  ship  into  a  con- 


140  THE    ALABAMA    ARBITRATION. 

federate  cruiser  under  the  name  of  the  Shenandoah, 
near  the  island  of  Madeira,  that  the  government  of 
Her  Britannic  Majesty  is  not  chargeable  with  any 
failure,  down  to  that  date,  in  the  use  of  due  dili- 
gence to  fulfill  the  duties  of  neutrality  ; 

But  whereas  it  results  from  all  the  facts  con- 
nected with  the  stay  of  the  Shena^idoah  at  Mel- 
bourne, and  especially  with  the  augmentation  which 
the  British  government  itself  admits  to  have  been 
clandestinely  effected  of  her  force,  by  the  enlistment 
of  men  within  that  port,  that  there  was  negligence 
on  the  part  of  the  authorities  at  that  place : 

For  these  reasons, 

The  tribunal  is  unanimously  of  opinion — 

That  Great  Britain  has  not  failed,  by  any  act  or 
omission,  "  to  fulfill  any  of  the  duties  prescribed  by 
the  three  rules  of  Article  VI.  in  the  Treaty  of  Wash- 
ington, or  by  the  principles  of  international  law  not 
inconsistent  therewith,"  in  respect  to  the  vessel 
called  the  She7tandoah,  during  the  period  of  time  an- 
terior to  her  entry  into  the  port  of  Melbourne  ; 

And,  by  a  majority  of  three  to  two  voices,  the  tri- 
bunal decides  that  Great  Britain  has  failed,  by  omis- 
sion, to  fulfill  the  duties  prescribed  by  the  second  and 
third  of  the  rules  aforesaid,  in  the  case  of  this  same 
vessel,  from  and  after  her  entry  into  Hobson's  Bay, 
and  is  therefore  responsible  for  all  acts  committed  by 


THE   ALABAMA    ARBITRATION.  I4I 

that  vessel  after  her  departure  from  Melbourne,  on 
the  1 8th  day  of  February,  1865. 

And  so  far  as  relates  to  the  vessels  called — 
And  of  the  '^^^  Tuscaloosa,[t&ndQr  to  \.\\q  Alabama,) 

Tuscaloosa,  The  Clarence, 

Clarence, 

Tacony,  and  The  Tacony,  and 

Archer.  -pj^^  Archer,  (tenders  to  the  Florida,) 

The  tribunal  is  unanimously  of  opinion — 
That  such  tenders  or  auxiliary  vessels,  being  prop- 
erly regarded  as  accessories,  must  necessarily  follow 
the  lot  of  their  principals,  and  be  submitted  to  the 
same  decision  which  applies  to  them  respectively. 
And  so  far  as  relates  to  the  vessel  called  Retributimi, 
The  tribunal,  by  a  majority  of  three  to  two  voices, 
is  of  opinion — 

No  responsi-  That  Great  Britain  has  not  failed  by 
Retribution  ^  ^"Y  ^^^  ^^  omission  to  fulfil  any  of  the 
Georgia,         duties    prescribed   by  the  three    rules    of 

Smnter,  i        t^  r  -nr      i  • 

Nashville,  Article  VI.  m  the  Treaty  of  Washmgton, 
Tallahassee,     ^j.  |^    ^^  principles  of  international  law 

or  Chtcka-  ./  i  i 

mauga.  not  inconsistent  therewith. 

And  so  far  as  relates  to  the  vessels  called — 

The  Georgia, 

The  Sumter, 

The  Nashville, 

The  Tallahassee,  and 

The  Chickamauga,  respectively, 


142  THE    ALABAMA    ARBITRATION. 

The  tribunal  is  unanimously  of  opinion — 
That  Great  Britain  has  not  failed,  by  any  act  or 
omission,  to  fulfill  any  of  the  duties  prescribed  by  the 
three  rules  of  Article  VI.  in  the  Treaty  of  Washington, 
or  by  the  principles  of  international  law  not  incon- 
sistent therewith. 

And  so  far  as  relates  to  the  vessels  called — 
The  Sallie,  The  Sa//te, 

y^<,„z,.„X     The  yeferscm  Davis, 

Boston,  and  The  Music, 

V.  H.Joy  not  t^,         r,      ,  ^ 

taken  into  con-       ^  ^e  Boston,  and 
sideration.  The  V.  H.  Joy,  respectively. 

The  tribunal  is  unanimously  of  opinion — 
That  they  ought  to  be  excluded  from  consideration 
for  want  of  evidence. 

And  whereas,  so  far  as  relates  to  the  particulars  of 
the  indemnity  claimed  by  the  United  States,  the  costs 
Claims  for  ^^  pursuit  of  the  Confederate  cruisers 

cost  of  pursuit      are  not,  in  the  judgment  of  the  tribunal, 

not  allowed.  ,        ,.     .  ■    1     1  1       /-  , 

properly  distmguishable  from  the  gen- 
eral expenses  of  the  war  carried  on  by  the  United 
States : 

The  tribunal  is,  therefore,  of  opinion,  by  a  major- 
ity of  three  to  two  voices — 

That  there  is  no  ground  for  awarding  to  the 
United  States  any  sum  by  way  of  indemnity  under 
this  head. 


THE    ALABAMA    ARBITRATION.  143 

And  whereas  prospective  earnings  cannot  properly 
.    , ,  be  made  the  subject  of  compensation,  in- 

And  for  pros-  ■' 

pective  asniuch   as  they  depend   in  their   nature 

earnings.  upon  future  and  uncertain  contingencies  : 

The  tribunal  is  unanimously  of  opinion — 

That  there  is  no  ground  for  awarding  to  the  United 
States  any  sum  by  way  of  indemnity  under  this  head. 

And  WHEREAS,  in  order  to  arrive  at  an  equitable 
Net  freights  compensation  for  the  damages  which  have 
only  allowed,  been  sustained,  it  is  necessary  to  set 
aside  all  double  claims  for  the  same  losses,  and  all 
claims  for  "  gross  freights,"  so  far  as  they  exceed 
"  net  freights  ;" 

And  WHEREAS,  it  is  just  and  reasonable  to  allow  in- 
terest at  a  reasonable  rate ; 

And  WHEREAS,  in  accordance  with  the  spirit  and 
letter  of  the  Treaty  of  Washington,  it  is  preferable  to 
adopt  the  form  of  adjudication  of  a  sum  in  gross, 
rather  than  to  refer  the  subject  of  compensation  for 
further  discussion  and  deliberation  to  a  board  of  as- 
sessors, as  provided  by  Article  X.  of  the  said  treaty  : 

The  tribunal,  making  use  of  the  authority  conferred 

upon  it  by  Article   VII.  of  the  said  treaty, 

115,500,000  ^  ■'  •' 

compensation   by  a  majority  of  four  voices  to  one,  awards 

to  the  United  States  a  sum  of  $15,500,000 

in  gold,  as  the  indemnity  to  be  paid  by  Great  Britain 

to  the  United   States,  for  the  satisfaction   of  all    the 


144  THE    ALABAMA    ARBITRATION. 

claims  referred  to  the  consideration  of  the  tribunal, 
conformably  to  the  provisions  contained  in  Article  VII. 
of  the  aforesaid  treaty. 

And,  in  accordance  with  the  terms  of  Article  XI. 
The  payment  ^^  ^^^  ^^^^  treaty,  the  tribunal  declares 
to  be  a  bar.       ^\^^^    i<  ^\\   |-|^g  claims    referred   to  in   the 

treaty  as  submitted  to  the  tribunal  are  hereby  fully, 
perfectly,  and  finally  settled." 

Furthermore  it  declares,  that  "  each  and  every  one 
of  the  said  claims,  whether  the  same  may  or  may  not 
have  been  presented  to  the  notice  of,  or  made,  pre- 
ferred, or  laid  before  the  tribunal,  shall  henceforth  be 
considered  and  treated  as  finally  settled,  barred,  and 
inadmissible." 

In  testimony  whereof  this  present  decision  and 
award  has  been  made  in  duplicate,  and  signed  by  the 
arbitrators  who  have  given  their  assent  thereto,  the 
whole  being  in  exact  conformity  with  the  provisions 
of  Article  VII.  of  the  said  Treaty  of  Washington. 

Made  and  concluded  at  the  Hotel  de  Ville  of 
Geneva,  in  Switzerland,  the  14th  day  of  the  month  of 
September,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  seventy-two. 

CHARLES  FRANCIS  ADAMS. 
FREDERIC  SCLOPIS. 
STAEMPFLI. 
VICOMTE  d'ITAJUBA. 


INDEX 


INDEX. 


PAGE 

Adams,  Charles  Francis 2,  3,  4,  5,  6,  7,  8,  9, 

14,  15,  21,  35,  53,  66,  68,  70,  72,  73,  79,  81,  94,  121,  125 
Alabama,   The 4,  5,  6,  7,  8,  9,  10, 

15,  16,  17,  18,  19,  22,  23,  36,  39,  40,  46,  54,  67,  68, 
69,  74,  80,  85,  86,  87,  88,  89,  92,  94,  95,  100,  loi, 
102,   103,  no,  112,  113,  114,  116,  117,  120,  123,  126,  127 

Alexander  Nevski,  The 32 

Alexander  the  Second 29,  30 

Alexis,  Grand  Duke      29,  31 

Balch,  Thomas 40,  42,  43, 

44.  49.  50.  52,  80,  81,  84,  108,  109,  no 

Banks,  General  N.  P 42 

Baring,  Thomas 12 

Bemis,  George 99,  in 

Bernard,  Professor  Mountague 115,  121 

Bright,  John 32,  103 

Bruce,  Sir  Frederick 77 

Bullock,  Captain  James  D 3,  5 

Cape  Town      9 

Clarendon,  Lord 95,   108,  112 

Cobden,  Richard 35.  36,  37.  38,  39.  43.  44.  I05 

Cockburn,  Sir  Alexander 121,  127,  128 

Collier,  Mr 6 

Curtin,  Governor  Andrew  G 28,  29,  30,  31 

Cushing,  Caleb 121 

Dallas,  Mr 2 

Daily  News,  the  London      86 

Dayton,  William  L 40,  41 

Davis,  J.  C.  Bancroft 121,  124,  125,  126 

Derby,  Earl 76 

Dudley,  Mr 5,  6 

(147) 


148  INDEX. 

Evarts,  William  M 121 


PAGE 


Field,  David  Dudley 80,  82,  83,  84 

Fish,   Hamilton 108,  iii,  112,  113,  114,  115 

Florida,  The 3,  4,    127 

Forster,  William  E 94 

Fox,  Hon.  Gustavus  Vasa 74 

Eraser,  Trenholm  &  Company 3'  H 

Georgia,  The 11,  12,  13 

Gettysburg 6 

Gortschakoff,  Prince 29,  30 

Grant,  General 7.  108,  109,  113 

Greeley,  Horace 45 

Grey  and  Ripon,  Earl  de      115 

Hammond,  Mr 23 

Hatteras,  The 10 

Hoar,  Ebenezer  Rockwood 115 

Hobart,  Lord      83 

Holmes,  Dr.  Edmund  W 9 

Holtzendorff,  von 80,  81 

d'ltajub^,  Baron 121,  127 

Jefferson,  Thomas 23 

Jonathan  to  John '  i 

Johnson,  Reverdy 94.  97.  lo^,  iii 

Kapp,  Friederich 81 

Kearsarge,   The 8,  40,  41 

Laboulaye,  Edouard      80 

Laird,  John 28,  36,  80 

Lairds,  Messrs 5.  7 


INDEX.  149 


PAGE 


Lawrence,  William  Beach   y. in 

Lessovsky,  Admiral  •    •    ( 26,  27,  32,  33,  34 

Lieber,   Francis 55,  66,  84,  107 

Lincoln,  President      i,  28,  34,  42,  43 

Lorimer,  Professor  James 49,  50,  52,  79 

Lowell,  James  Russell 11 

Macdonald,  Sir  John  A 115 

Meade,  General      6 

Melbourne 14 

Mexican  Expedition 35.  42 

Miantonomoh,  The  (monitor) 74,  75 

Moreau,  Henry 32,  80,  81 

Motley,  J.  L in,  112 

Napoleon  the  Third 30.  31.  35 

Nelson,  Mr.  Justice 115 

Northcote,  Sir  Stafford 80,  107,  115 

Oreto,   The  {The  Florida) 3,  4,  15,  100 

Osliaba,   The 32 

Palmer,  Sir  Roundell 36,  121,  125 

Palmerston,  Lord 25,  26,  30,  35,  36 

Peirce,  George 28,  31 

Peresvet,  The 32 

Popoff,  Admiral      25 

Provost- Paradol      35.  38,  52 

Ripon,  Earl  de  Grey  and 115 

Rose,  Sir  John 112,  113 

Ross,  David 39.  §3 

Russell,  Earl  .    2,  3,  4,  5,  6,  7,  8,  9,  14,  15,  21,  24,  25,  26, 

30.  35.  36,  53.  66,  67,  68,  70,  72,  74,  76,  80,  92,  100,  120 
Russian  fleet 24,  30,  33,  38 


150  INDEX. 


PACE 


Sea  Bride,  The 9 

Schenck,  General 115 

Sclopis,  Count  Frederic 121,  122 

Semmes,  Captain 2,  4,  10 

Seward,  Secretary 34,  55,  66,  77,  78,  79,  97 

Shaw-Lefevre,  Mr 94 

Shenandoah,   The  {The  Sea  King)   .    .    .      11,  14,  68,  69,  127 

Singapore 9 

Social  Science 80 

Staempfli,  Jacques 121 

Stanley,  Lord 76,  79,  94,  95 

Sumner,  Charles 32,  35,  36, 

37,  95,  99,  104,  106,  107,  108,  109,  no 

Sumter,  Fort i 

Sumter,  The 2 

Tenderden,  Lord 121,  124,  125 

Thornton,  Sir  Edward 114,  115 

Three  Rules,  the 116 

Trent,  The 39 

Tribune,  the  New  York 45,  80 

Variag,    The 32 

Vicksburg 7 

Vitiaz,  The 32 

Wachusett,    The 4 

Waite,  Morris  R 121 

Warrior,   The 8 

Westlake,  John 79,  85,  93 

Williams,  George  H 115 

Winslow,  Captain 40 

Yeaman,  George  H 81,  84 

"290"  {The  Alabama) 5,  6,  7,  16,  17 


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